Referendum Act, 1994

• Permanent Page URL

Number 12 of 1994

REFERENDUM ACT, 1994

ARRANGEMENT OF SECTIONS

PART I

General

PART II

Taking a Referendum

PART III

The Counting of the Votes

PART IV

Referendum Petitions

FIRST SCHEDULE

Enactments Repealed

SECOND SCHEDULE

Forms of Ballot Paper

Number 12 of 1994

REFERENDUM ACT, 1994

AN ACT TO PROVIDE FOR THE REFERENCE TO THE PEOPLE UNDER ARTICLE 47 OF THE CONSTITUTION OF BILLS CONTAINING PROPOSALS FOR THE AMENDMENT OF THE CONSTITUTION AND FOR THE REFERENCE TO THE PEOPLE UNDER ARTICLE 27 OF THE CONSTITUTION OF OTHER BILLS AND TO PROVIDE FOR MATTERS CONNECTED WITH THE MATTERS AFORESAID. [22nd May, 1994]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

General

Short title, collective citation and commencement.

1.—(1) This Act may be cited as the Referendum Act, 1994.

(2) Parts II and XXIII (insofar as they relate to referenda) of the Act of 1992 and this Act may be cited together as the Referendum Acts, 1992 and 1994.

(3) This Act (other than this section) shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions of this Act.

Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“the Act of 1992” means the Electoral Act, 1992 ;

“a ballot paper” has the meaning assigned to it by section 24 ;

“constituency” has the meaning assigned to it by section 18 ;

“constitutional referendum” means a referendum on a proposal for the amendment of the Constitution;

“Dáil” means Dáil Éireann;

“Dáil election” means an election of a member or members to serve in the Dáil;

“elector” means a presidential elector;

“excluded day” means a day which is a Sunday, Good Friday or a day which is a public holiday within the meaning of the Holidays (Employees) Act, 1973 , or a day which by virtue of a statute or proclamation is a public holiday;

“the local returning officer” has the meaning assigned to it by section 15 ;

“the Minister” means the Minister for the Environment;

“the official mark” has the meaning assigned to it by section 25 ;

“ordinary referendum” means a referendum on a proposal other than a proposal for the amendment of the Constitution;

“a personation agent” has the meaning assigned to it by section 26 ;

“the polling day” has the meaning assigned to it in Part II ;

“a postal voter” means a presidential elector whose name is entered in the postal voters list;

“the postal voters list” means the list prepared pursuant to section 14 of the Act of 1992 insofar as it relates to presidential electors;

“prescribed”, except in section 23 , means prescribed by the Minister by regulations;

“presidential elector” means a person entitled to vote at an election of a person to the office of President of Ireland;

“referendum” includes a constitutional referendum and an ordinary referendum;

“a referendum petition” has the meaning assigned to it by section 42 ;

“the referendum returning officer” has the meaning assigned to it by section 14 ;

“the register of electors” means the register of presidential electors;

“the register of presidential electors” has the meaning assigned to it by section 13 of the Act of 1992;

“Seanad” means Seanad Éireann;

“a special voter” means a presidential elector whose name is entered in the special voters list;

“the special voters list” means the list prepared pursuant to section 17 of the Act of 1992 insofar as it relates to presidential electors.

(2) In this Act—

(a) a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended;

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended;

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.

(3) For the purpose of the application by virtue of this Act to referenda of certain provisions of the Act of 1992, the said provisions as so applied shall have effect as if—

(a) a reference in that Act to a Dáil elector or an elector was a reference to a presidential elector;

(b) a reference in that Act to a Dáil election or an election was a reference to a referendum;

(c) a reference in that Act to the register of Dáil electors or the register of electors was a reference to the register of presidential electors;

(d) a reference in that Act to a returning officer was a reference to a local returning officer;

(e) a reference in that Act to the Act of 1992 was a reference to this Act, including the provisions of that Act applied to referenda by this Act;

(f) the reference in section 67 of the said Act to section 60 thereof was a reference to section 26 and “of the candidates” was deleted;

(g) the references in section 68 of the said Act to “each candidate” were references to each member of the Dáil for the constituency and each member of the Seanad resident in the constituency concerned and “if the election is contested” was deleted;

(h) the references in section 73 of the said Act to “each candidate” were references to each member of the Dáil for the constituency and each member of the Seanad resident in the constituency concerned;

(i) in section 74 of the said Act “an agent” was substituted for “the agent of a candidate”;

(j) in section 76 of the said Act the reference to section 129 thereof was a reference to section 38 , the references in the said section 76 to the Clerk of the Dáil were references to the referendum returning officer and “of the candidates” was deleted;

(k) in section 81 of the said Act “he receives from the referendum returning officer a copy of the Minister's order appointing the polling day at the referendum” was substituted for “the adjournment of the Dáil election for the purpose of taking a poll”;

(l) in section 85 of the said Act the reference to “the notice of poll under section 87” was a reference to the notice of the taking of the referendum under section 21 ;

(m) in section 95 of the said Act “a member of the Dáil for the constituency and any member of the Seanad” was substituted for “a person in respect of whom he is satisfied that that person has a bona fide interest in the Dáil election as either a candidate or a prospective candidate, or the agent of such a person”;

(n) in section 98 of the said Act the following was substituted for paragraph (c)—

“(c) a member of the Dáil for the constituency and any member of the Seanad,”;

and “by or on behalf of the candidates” in paragraph (d) was deleted;

(o) in section 101 of the said Act the reference to sections 38 and 64 thereof was a reference to section 28 and the reference to section 79 thereof was a reference to section 29 and the reference to sections 99 and 100 was a reference to section 31 ;

(p) in section 103 of the said Act subparagraph (iii) of subsection (4) was deleted and “Are you a personation agent at this referendum?” was substituted for subparagraph (iv) of the said subsection and in subsection (7) “proposal stated therein” was substituted for “particulars stated in respect of each candidate” and in subsection (9) “member of the Dáil or Seanad or a personation agent at the referendum” was substituted for “candidate or agent of a candidate at that election”;

(q) in section 106 of the said Act “any particular result at the referendum” was substituted for “the candidature of a particular person or persons or of members of a political party”;

(r) in section 108 of the said Act, the reference to sections 56, 62 and 63 thereof was deleted and the reference to section 96 thereof was a reference to section 13 ;

(s) in section 110 of the said Act, the reference to sections 99 and 100 thereof was a reference to section 31 ;

(t) in section 111 (1) of the said Act, “and section 31 of the Referendum Act, 1994” was inserted after “section”;

(u) in sections 112 and 114 of the said Act the reference to Part XIX thereof was a reference to Part III ;

(v) in section 113 of the said Act the references to “each candidate” were references to each member of the Dáil for the constituency and each member of the Seanad resident in the constituency and “of the candidates” in subsections (2) and (3) was deleted;

(w) in section 114 of the said Act “of the candidates” was deleted and “any agent present” was substituted for “the agent of any candidate”;

(x) in section 115 of the said Act “may consider expedient” was substituted for “and the candidates otherwise agree”;

(y) in section 117 of the said Act “Any person, other than the returning officer, his assistants and clerks” was substituted for “Candidates or their agents”;

(z) in section 134 of the said Act the reference to section 68 thereof was a reference to section 28 ;

(aa) in section 135 of the said Act paragraphs (c) and (d) of subsection (1) and “the election of any person or” in paragraphs (a) and (b) of the said subsection were deleted;

(bb) in section 136 of the said Act paragraphs (b) and (c) and “for a particular person or” in paragraph (a) were deleted;

(cc) in section 137 of the said Act “manner in which” was substituted for “candidate for whom” in each place where the expression occurs and for “name of the candidate for whom” in subsection (4) (c);

(dd) in section 138 of the said Act paragraph (h) and “nomination paper or any certificate of political affiliation or any” in paragraph (g) were deleted, and in the said paragraph (g) “ section 31 ” was substituted for “section 99 or section 100”;

(ee) in section 139 of the said Act the reference to a period of time was a reference to the period commencing on the date of the order appointing the polling day and ending on the publication in Iris Oifigiúil of the provisional referendum certificate;

(ff) in section 140 of the said Act “a particular result” was substituted for “the candidature of any candidate”;

(gg) in sections 140 and 144 of the said Act the references to a returning officer were a reference to the referendum returning officer and a local returning officer;

(hh) in section 144 of the said Act “at the referendum or is actively associated in furthering any particular result at the referendum” was substituted for “for any candidate at that election or who is actively associated in furthering the candidature of any candidate or promoting the interests of any political party at the election”;

(ii) in section 145 of the said Act “nomination of candidates or the” was deleted;

(jj) in section 147 of the said Act “any particular result at the referendum” was substituted for “the interest of a political party or furthering the candidature of a candidate or candidates or soliciting votes for a candidate or candidates” in subsection (2) and “for a candidate or candidates or vote” in paragraph (b) of that subsection was deleted;

(kk) in section 148 of the said Act the reference to section 96 thereof was a reference to section 13 ;

(ll) in section 153 of the said Act “Any person, other than the returning officer, his assistants and clerks,” was substituted for “A candidate or the agent of a candidate”;

(mm) in section 154 of the said Act the reference to section 130 thereof was a reference to section 39 ;

(nn) in section 155 of the said Act “or the cesser of membership of the Dáil” was deleted and a reference to section 49 was substituted for the reference to Rule 8 of the Third Schedule thereof;

(oo) in section 156 of the said Act “the decision of the court” was construed as meaning the final order of the High Court on the trial of a referendum petition;

(pp) in section 157 of the said Act the reference to section 133 thereof was deleted; and

(qq) in section 160 of the said Act “or that a particular person was a candidate thereat” was deleted;

and with any other necessary modifications.

Regulations.

3.—(1) The Minister may make regulations prescribing any matter or thing that is referred to in this Act, other than in section 23 , as prescribed.

(2) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Expenses.

4.—(1) The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) The expenses incurred by reason of this Act by An Post shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of the Central Fund or the growing produce thereof.

Repeals.

5.—The enactments mentioned in the First Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.

Application of certain provisions of Part XXII of Act of 1992.

6.—The provisions of sections 134 to 140, 144 to 150 and 152 to 160 of the Act of 1992 shall, subject to the modifications specified in section 2 (3), apply and have effect in relation to referenda.

Secrecy.

7.—A person who at a referendum is—

(a) present at the issue of ballot papers to postal voters,

(b) present while a special voter is voting,

(c) present at the opening of postal ballot boxes,

(d) admitted to a polling station in any capacity, or

(e) present in any capacity at the counting of the votes,

shall maintain, and aid in maintaining the secrecy of the ballot.

Prohibition of disclosure of vote.

8.—A person who has voted at a referendum shall not in any legal proceedings be required to state how he voted.

Publication of notices.

9.—Any public notice required by this Act to be given by the referendum returning officer or a local returning officer may be given by any method which the returning officer concerned thinks necessary or desirable for the purpose of bringing to the attention of the public the matter the subject of the requirement.

PART II

Taking a Referendum

The polling day at a constitutional referendum.

10.—(1) Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed or deemed to have been passed by both Houses of the Oireachtas the Minister shall by order appoint the day (in this Act referred to as “the polling day”) upon which and the period during which the poll at the referendum on such proposal shall be taken.

(2) Subject to section 11 , the polling day shall be not less than thirty days and not more than ninety days after the date of the order.

(3) Every order under this section shall be published in Iris Oifigiúil as soon as may be after it is made.

(4) On such a Bill being passed or deemed to have been passed by both Houses the Clerk of the Dáil shall forthwith inform the Minister accordingly.

Power to appoint the same polling day for a general election and a constitutional referendum.

11.—(1) Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed, or deemed to have been passed, by both Houses of the Oireachtas, and Dáil Éireann is dissolved before the Minister has made under section 10 an order appointing the polling day at the referendum on such proposal, the Minister may (notwithstanding anything contained in the said section 10 ) by order under that section appoint the polling day at the general election consequent on such dissolution of Dáil Éireann to be the polling day at the referendum.

(2) Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed, or deemed to have been passed, by both Houses of the Oireachtas, and Dáil Éireann is dissolved after the Minister has made an order (in this subsection referred to as the original order) under section 10 in relation to the referendum on such proposal and before the polling day appointed by that order, the Minister may by order amend the original order by substituting the day which is the polling day at the general election consequent on the dissolution of Dáil Éireann for the day named in the original order as the polling day at the referendum.

The polling day at an ordinary referendum.

12.—(1) Whenever—

(a) the Taoiseach is informed in accordance with Article 27 of the Constitution that the President has decided that a Bill to which that Article applies contains a proposal of such national importance that the will of the people thereon ought to be ascertained, and

(b) the Government determine that a referendum for the purpose of ascertaining the will of the people on the proposal shall be taken,

the Minister shall by order appoint the day (in this Act referred to as “the polling day”) upon which and the period during which the poll at the referendum shall be taken.

(2) The polling day appointed by an order under this section shall be not less than thirty days and not more than ninety days after the date of the order.

(3) Whenever the Government determine that an ordinary referendum shall be taken, the Government shall cause notice of the determination to be published in Iris Oifigiúil, and such publication shall be conclusive evidence of the determination.

(4) Every order made by the Minister under this section shall be published in Iris Oifigiúil as soon as may be after it is made.

Times of poll.

13.—The poll at a referendum shall—

(a) be taken on such day as shall be appointed for this purpose by order of the Minister under this Act, and

(b) shall continue for such period, not being less than 12 hours, between the hours of 8 a.m. and 10.30 p.m., as may be appointed by the said order, subject to the restriction that the same day and the same period shall be so appointed for all constituencies.

The referendum returning officer.

14.—(1) Not later than the day on which an order appointing the polling day at a referendum is made, the Minister shall appoint a person to be the returning officer (in this Act referred to as “the referendum returning officer”) for the purposes of the referendum.

(2) Where the referendum returning officer is prevented by illness or other reasonable cause from performing all or any of his duties at the referendum, the Minister shall appoint a person to act as a referendum returning officer for the performance of those duties during the period of the prevention and references in this Act to the referendum returning officer shall be construed accordingly.

(3) It shall be the duty of the referendum returning officer to conduct the referendum for the purposes of which the officer is appointed, to ascertain and declare the result thereof in accordance with this Act, and to do such other acts and things in respect of the referendum as are required by this Act.

(4) There shall be charged on and paid out of the Central Fund or the growing produce thereof to the referendum returning officer such sums as the Minister for Finance shall sanction for that officer's services and expenses in respect of the referendum for the purposes of which the officer is appointed.

(5) For the purpose of payment for such services and expenses, an account of them shall be submitted by the referendum returning officer to the Minister for Finance and the Minister for Finance may issue directions as to the time when and the manner and form in which the account shall be so submitted.

(6) The Minister for Finance may make an advance to the referendum returning officer for the officer's services and expenses on such terms as that Minister thinks fit.

(7) The appointment of a referendum returning officer for the purposes of a referendum shall be deemed to extend to and include appointment for the purposes of any retaking of the referendum pursuant to section 48 .

Local returning officers.

15.—(1) The person who would be the returning officer at a Dáil election in a constituency shall be the returning officer (in this Act referred to as “the local returning officer”) in that constituency for the purposes of a referendum.

(2) Where the person referred to in subsection (1) is prevented by illness or other reasonable cause from performing all or any of the duties of a local returning officer or where a vacancy occurs in an office by virtue of which a person would be the returning officer at a Dáil election, the Minister shall appoint a person to act as local returning officer for the constituency concerned during the period of the prevention or vacancy, as the case may be.

(3) It shall be the duty of the local returning officer for a constituency to take the poll at the referendum in the constituency and to count the votes cast thereat and to do such acts and things as may be necessary for effectually taking the poll and counting the votes in the constituency in accordance with this Act.

(4) Where at a referendum the same person is local returning officer for two or more constituencies, the person shall—

(a) in case those constituencies are two and not more, appoint, in respect of one of them, a deputy local returning officer to open the ballot boxes and count the votes;

(b) in any other case, appoint, in respect of each of the constituencies (except one), a deputy local returning officer to open the ballot boxes and count the votes.

(5) The duties of a deputy local returning officer appointed under subsection (4) shall include the determination of the result of the poll in the constituency concerned and the furnishing to the referendum returning officer of the report referred to in section 37 .

(6) An appointment under subsection (4) may be revoked by the local returning officer and, where an appointment is so revoked or the deputy local returning officer dies, resigns or becomes incapable of acting during the referendum, another deputy local returning officer shall be appointed in accordance with the said subsection (4).

(7) Where pursuant to section 30 (2) of the Act of 1992 a person has been appointed as assistant returning officer for a part of a constituency, that person shall be the assistant local returning officer for the purposes of a referendum in that part of the constituency.

(8) An assistant local returning officer shall perform, in the part of the constituency for which the appointment is made, such of the duties of the local returning officer for the constituency as that officer is not required by law to perform in person but, if any doubt arises as to the duties of an assistant local returning officer, the doubt shall be determined by the Minister.

(9) References in this Act to local returning officers shall, where appropriate, include references to assistant, deputy and acting local returning officers.

Expenses of local returning officers.

16.—(1) The Minister for Finance shall prepare a scale of maximum charges for local returning officers and every local returning officer shall be paid by the said Minister out of the Central Fund or the growing produce thereof the officer's reasonable charges, in respect of services and expenses in relation to a referendum, not exceeding the maximum charges specified in the scale prepared under this section and applying for the time being.

(2) For the purpose of the payment of such charges, an account of them shall be submitted by a local returning officer to the Minister for Finance and the Minister for Finance may issue to local returning officers directions as to the time when and the manner and form in which the account shall be so submitted.

(3) On the request of a local returning officer for an advance on account of the officer's charges, the Minister for Finance may, on such terms as the said Minister thinks fit, make such an advance.

(4) The Minister for Finance may, before payment of a local returning officer's charges under this section, apply to a judge of the Circuit Court having jurisdiction in any part of the constituency concerned for the taxation of the account submitted by the local returning officer and the judge shall tax the account and determine the amount payable there under.

(5) The taxation under this section of the account of a local returning officer shall, if the judge so decides on the application of the officer, include the determination of any claim made against the officer in respect of any matter charged for in the account.

Statement by registration authorities of number of presidential electors.

17.—(1) Not later than five days before the polling day at an ordinary referendum, every registration authority shall furnish to the referendum returning officer a statement in writing of the number of presidential electors registered in the register of presidential electors in force on the polling day in each constituency or portion of a constituency contained in their registration area.

(2) In this section “registration authority” and “registration area” have the same meanings, respectively, as in Part II of the Act of 1992 and the “register of presidential electors” shall include any supplement to the register published under section 15 of that Act and having effect in relation to such referendum.

Constituencies.

18.—(1) For the purpose of taking the poll at a referendum, the State shall be deemed to be divided into the same constituencies as those into which it is for the time being divided for the purpose of Dáil elections and the poll shall be taken separately in each such constituency.

(2) The Minister may, if satisfied that it is appropriate so to do, by order, made not later than the date on which the order appointing the polling day at a referendum is made, provide that for the purpose of the referendum concerned each county and each county borough shall be deemed to be a constituency for the purpose of Dáil elections and, as respects a referendum for the purpose of which the order is in force—

(a) the poll shall be taken separately in each county and each county borough;

(b) each voter at the poll shall vote in the constituency in which the voter would be entitled to vote at a Dáil election if each county and each county borough in the State were a constituency for such election;

(c) the local returning officer shall be—

(i) in the case of the county of Cork, the counties of South Dublin, Fingal and Dún Laoghaire-Rathdown, the county borough of Cork and the county borough of Dublin, the appropriate sheriff, and

(ii) in any other case, the county registrar for the county or county borough concerned;

and

(d) in this Act (other than this subsection)—

(i) references to a constituency shall be construed in accordance with the order, and

(ii) references to a member of the Dáil for the constituency shall be construed as references to a member of the Dáil for any constituency situate wholly or partly within the county or county borough and references to a member of the Seanad resident in the constituency shall be construed as references to a member of the Seanad resident in the county or county borough.

(3) An order under this section shall be published in Iris Oifigiúil as soon as may be after it is made.

Polling districts and polling places.

19.—For the purpose of the poll at a referendum each constituency shall be deemed to be divided into the same polling districts as those into which it is for the time being divided for the purpose of Dáil elections and the places which are for the time being appointed as polling places in each such polling district for the purpose of Dáil elections shall be the polling places for the purpose of taking the poll at a referendum and references in this Act to polling districts and polling places shall be construed accordingly.

Notice to local returning officers.

20.—As soon as practicable after the making by the Minister of an order appointing the polling day at a referendum the referendum returning officer shall send to every local returning officer a copy of the order and a copy of the Bill containing the proposal which is the subject of the referendum.

Notice of the taking of the referendum.

21.—Every local returning officer shall, as soon as practicable after receiving from the referendum returning officer a copy of the order appointing the polling day at a referendum, give public notice in the form directed by the Minister of—

(a) the taking of the referendum to which the order relates,

(b) the short title of the Bill containing the proposal which is the subject of the referendum,

(c) the post offices at which copies of the Bill may be inspected and purchased, and

(d) the day on which and the hours during which the poll will be taken.

Copies of Bill to be made available at post offices.

22.—(1) An Post shall cause copies of the Bill containing the proposal which is the subject of the referendum to be made available for inspection and purchase by members of the public at such post offices as shall be agreed upon between the Minister and An Post at all times at which such post offices are open during the period commencing on the fifth day after the date of the order appointing the polling day and ending on the polling day.

(2) Any member of the public shall be entitled to inspect free of charge a copy of the said Bill, and to purchase a copy thereof at a price (if any) fixed by An Post, with the consent of the Minister, at any post office at which it is made available for such inspection in pursuance of this section during any time at which it is so made available.

Statement for the information of voters.

23.—(1) At a referendum a statement in relation to the proposal which is the subject of the referendum may be prescribed for the information of voters by resolution of each House of the Oireachtas and, where a statement is so prescribed—

(a) a polling information card sent under section 92 of the Act of 1992 (as applied by section 32 ) shall contain a copy of the statement;

(b) copies of the statement shall also be sent by the local returning officer for a constituency to every elector whose name is on the register of presidential electors for such constituency and is on the postal voters list for such constituency at the same time as the ballot paper for the poll at the referendum is sent to the elector;

(c) copies of the statement shall also be sent by the local returning officer for a constituency to every elector whose name is on the register of presidential electors for such constituency and is on the special voters list for such constituency and shall be so sent in sufficient time to be delivered to the elector before the delivery of the ballot paper to the elector;

(d) copies of the statement shall be displayed by a presiding officer in and in the precincts of the polling station: Provided that the referendum shall not be invalidated by reason of any failure to display such copies in or in the precincts of any polling station.

(2) Where a statement is prescribed under subsection (1) in relation to a referendum, in applying section 103 of the Act of 1992 (as applied by section 32 ) the following subsection shall be substituted for subsection (7):

“(7) (a) Where a ballot paper is to be marked pursuant to subsection (5), the presiding officer may assist the voter by reading out in full from the ballot paper the proposal stated therein and asking the voter “Do you approve of or do you object to that proposal becoming law?” and shall then, unless it is a case to which paragraph (b) of this subsection applies, mark the ballot paper in accordance with the answer of the voter, but the presiding officer shall not act on any written instruction.

(b) Where the voter fails to understand the import of the said question, or does not answer the question the presiding officer—

(i) shall read out to the voter the statement prescribed pursuant to section 23 (1) of the Referendum Act, 1994,

(ii) shall then ask the voter “Which do you wish to do—to vote in favour of the proposal in that Bill or to vote against the proposal?”, and

(iii) shall then mark the ballot paper in accordance with the answer of the voter, but shall not act on any written instructions.”.

Ballot papers.

24.—(1) At a constitutional referendum—

(a) every ballot paper shall be in the form set out in Part I of the Second Schedule to this Act, and

(b) the proposal which is the subject of the referendum shall be stated on the ballot paper by citing by its short title the Bill containing such proposal passed or deemed to have been passed by both Houses of the Oireachtas.

(2) At an ordinary referendum every ballot paper shall be in the form set out in Part II of the Second Schedule to this Act, and it shall contain a reference to the Bill or the portion of the Bill containing the proposal which is the subject of the referendum.

(3) Where the same day is the polling day at two or more referenda separate ballot papers shall be issued for each referendum.

(4) (a) At a referendum the Minister may, by order, provide for the entry at the beginning of the front of the ballot paper to be used at the referendum of a heading indicative of the proposal which is the subject of the referendum and the referendum returning officer shall cause such heading to be printed on the ballot papers.

(b) Where an order under this subsection is proposed to be made, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(5) (a) The ballot papers shall be numbered consecutively on the back and the back of the counterfoil attached to each ballot paper shall bear the same number.

(b) The numbers on the ballot papers shall be printed in the smallest characters compatible with legibility and shall be printed on or about the centre of the paper.

(c) Apart from anything permitted by the form set out in the said Second Schedule nothing shall appear on the ballot paper except in accordance with the provisions of this section.

(6) It shall be the duty of the referendum returning officer to arrange for the printing and procuring of a sufficient quantity of ballot papers and to supply as soon as practicable to every local returning officer such numbers of ballot papers as that officer reasonably requires.

The official mark.

25.—(1) A ballot paper shall at the time of issue be marked with an official mark (in this Act referred to as “the official mark”), which shall be either embossed or perforated so as to be visible on both sides of the paper and the local returning officer shall provide a sufficient number of marking instruments for this purpose.

(2) The local returning officer shall ensure that the official mark is kept secret before the taking of the poll and that any particular mark is not used at two consecutive referenda (other than referenda the polls at which are taken on the same day) in the constituency.

Provisions as to agents.

26.—(1) A member of the Dáil for the constituency and any member of the Seanad may appoint agents to be present—

(a) at the issue of ballot papers to postal voters,

(b) at the opening of the postal ballot boxes, and

(c) at the counting of the votes.

(2) Subject to the provisions of subsection (3), the number of agents who may be appointed to be present on behalf of a member of the Dáil or the Seanad shall be fixed by the local returning officer, so, however, that the same number shall be allowed on behalf of every member.

(3) A member of the Dáil for the constituency and any member of the Seanad may appoint one person (in this Act referred to as “a personation agent”) to be present as his agent in each polling station for the purpose of assisting in the detection of personation, and such appointment shall be in writing.

(4) An appointment under this section may be revoked by the person by whom it was made.

(5) A member of the Dáil for the constituency and a member of the Seanad shall, not later than the time for the commencement of the issue of ballot papers to postal voters, give written notice to the local returning officer for the constituency of the name and address of every agent appointed by that member to be present at the said issue and the local returning officer may refuse to admit to the place where the ballot papers are to be issued any agent whose name and address have not been so notified.

(6) A member of the Dáil for the constituency and a member of the Seanad shall, not less than two days (disregarding any excluded day) before the polling day, give written notice to the local returning officer for the constituency concerned of the name and address of every personation agent appointed by that member together with the name of the polling station for which the personation agent is appointed. A personation agent appointed in accordance with this section and whose name and address have been duly notified to the local returning officer shall be entitled to be present in the polling station referred to in the notification during the period commencing 30 minutes before the time fixed by the Minister for the commencement of the poll and ending when the ballot boxes have been sealed by the presiding officer pursuant to section 110 of the Act of 1992 (as applied by section 32 ) and the documents and materials specified in that section have been placed in sealed packets.

(7) A member of the Dáil for the constituency and a member of the Seanad shall, not less than two days (disregarding any excluded day) before the polling day, give written notice to the local returning officer for the constituency concerned of the name and address of every agent appointed by that member to be present at the opening of the postal ballot boxes and the local returning officer may refuse to admit to the place where the postal ballot boxes are to be opened any agent whose name and address have not been so notified.

(8) A member of the Dáil for the constituency and a member of the Seanad shall not less than two days (disregarding any excluded day) before the polling day, give written notice to the local returning officer for the constituency concerned of the name and address of every agent appointed by that member to be present at the counting of the votes and the local returning officer may refuse to admit to the place where the votes are to be counted any agent whose name and address have not been so notified.

(9) Where the appointment of an agent under this section is revoked or an agent appointed under this section dies, resigns or becomes incapable of acting during a referendum, another person may be appointed under this section in place of such agent and, where such an appointment is made, the person making the appointment shall forthwith give written notice of the name and address of the agent appointed to the local returning officer for the constituency concerned.

(10) A member of the Dáil for the constituency and a member of the Seanad may lawfully do or assist in the doing of any thing which may lawfully be done on the member's behalf by an agent appointed under this section and may be present (in addition to, or in substitution for any such agent) at any place at which any such agent may, pursuant to this Act, be present.

(11) Any thing required by this Act to be done in the presence of an agent shall not be invalidated by reason only of the agent's not being present at the time and place appointed for doing such thing.

(12) Where the polling day at a constitutional referendum is also the polling day at a general election—

(a) the powers conferred by this section on a member of the Dáil shall be exercisable by any person who was a member of the Dáil for the constituency concerned immediately before the dissolution which occasioned such general election, and

(b) (i) every person appointed under section 60 of the Act of 1992 to be a personation agent for the purposes of such general election at a polling station shall be deemed to have been appointed under this section to be a personation agent at such polling station for the purposes of such referendum and the provisions of this Act shall apply to the person accordingly,

(ii) every person appointed under this section to be a personation agent for the purposes of the referendum at a polling station shall be deemed to have been appointed under section 60 of the Act of 1992 to be a personation agent at such polling station for the purposes of such general election and the provisions of the Act of 1992 shall apply to the person accordingly.

Officers not to act as agents.

27.—(1) The referendum returning officer, a local returning officer or a person employed by either of them for any purpose relating to a referendum shall not act as an agent for a member of the Dáil or a member of the Seanad at that referendum and shall not be associated in furthering any particular result at the referendum.

(2) The referendum returning officer or a local returning officer shall not employ in any capacity for the purposes of a referendum a person who has been employed by any other person in or about the referendum or has been associated in furthering any particular result at the referendum.

Voting by postal voters.

28.—(1) Every presidential elector whose name is, at the time of a referendum, in the postal voters list for a constituency (in this Act referred to as “a postal voter”) shall be entitled to vote in that constituency at the poll at the referendum by sending a ballot paper by post to the local returning officer for the constituency and shall not be entitled to vote at the referendum in any other manner.

(2) The local returning officer for a constituency shall, as soon as practicable after receiving from the referendum returning officer a copy of the Minister's order appointing the polling day at the referendum, send to each postal voter for the constituency a ballot paper and a form of receipt for such ballot paper in the form directed by the Minister and, if the ballot paper duly marked by the said postal voter and accompanied by the said receipt duly signed by the voter is received by the local returning officer before the close of the poll, it shall be counted by the local returning officer and treated for all purposes in the same manner as a ballot paper placed in a ballot box in the ordinary way at the taking of the poll.

(3) The provisions of sections 65 to 76 of the Act of 1992 shall, subject to the modifications specified in section 2 (3), apply and have effect in relation to postal voting at a referendum and, in sending out, receiving and otherwise dealing with the ballot papers of postal voters the local returning officer shall comply with the provisions of those sections.

(4) The notices required to be given pursuant to sections 68 and 73 of the Act of 1992 (as applied by subsection (3)) shall be given to each member of the Dáil for the constituency and each member of the Seanad resident in the constituency.

(5) A reference to an agent in any of the sections of the Act of 1992 referred to in subsection (3) shall be deemed to include a reference to each member of the Dáil for the constituency and any member of the Seanad and any person appointed by such member to be present at the issue of ballot papers to postal voters or the opening of postal voters ballot boxes.

Voting by special voters.

29.—(1) Every presidential elector whose name is, at the time of a referendum, in the special voters list for a constituency (in this Act referred to as “a special voter”) shall be entitled to vote in that constituency at the poll at the referendum in the manner described in section 82 of the Act of 1992 and shall not be entitled to vote in any other manner.

(2) The provisions of sections 78 and 80 to 84 of the Act of 1992 shall, subject to the modifications specified in section 2 (3), apply and have effect in relation to voting by special voters at a referendum and, in delivering, receiving and otherwise dealing with the ballot papers of special voters, the local returning officer shall comply with the provisions of those sections.

Polling on islands.

30.—The provisions of sections 85 and 86 of the Act of 1992 shall, subject to the modifications specified in section 2 (3), apply and have effect in relation to the taking of the poll at a referendum at a polling station situate on an island.

Authorisation to vote at another polling station.

31.—(1) Where an elector is employed by a local returning officer for any purpose in connection with a referendum and the circumstances of the elector's employment are, in the opinion of the local returning officer, such as to prevent the elector from voting at the polling station at which the elector would otherwise be entitled to vote, the elector may, if so authorised in writing by the local returning officer in such form as may be directed by the Minister, vote at such polling station in the constituency in which the elector is so employed as may be specified in the authorisation.

(2) Where not less than 7 days before polling day at a referendum, an elector whose name is not on the postal voters list or the special voters list, satisfies the local returning officer that the elector is unable, by reason of that elector's physical illness or physical disability, to vote at the polling station at which the elector would otherwise be entitled to vote and the local returning officer is of opinion that it would be more convenient for the elector because of that physical illness or physical disability to vote at another polling station in the same constituency, the elector may, if so authorised in writing by the local returning officer in such form as may be directed by the Minister, vote at such other polling station in the same constituency as may be specified in the authorisation.

Taking the poll at a referendum.

32.—(1) The provisions of sections 90 to 95, 97, 98 and 101 to 111 of the Act of 1992 shall, subject to the modifications specified in section 2 (3), apply and have effect in relation to the taking of the poll at a referendum.

(2) Where in accordance with the provisions of section 107, 108 or 109 of the Act of 1992 (as applied by subsection (1)), the poll at any polling station is adjourned or cannot be taken or continued or becomes void, the local returning officer concerned shall, in addition to doing the things required to be done by the said provisions, forthwith inform the referendum returning officer of the occurrence.

PART III

The Counting of the Votes

Arrangements in relation to the counting of votes.

33.—The provisions of sections 112 to 115 and 117 of the Act of 1992 shall, subject to the modifications specified in section 2 (3) apply and have effect in relation to the arrangements for the counting of votes by the local returning officer in each constituency at a referendum.

Invalid ballot papers.

34.—(1) A ballot paper—

(a) which does not bear the official mark, or

(b) on which the mark “x” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote, is not placed at all or is not so placed as to indicate a vote in favour of or a vote against the proposal which is the subject of the referendum, or

(c) on which the mark “x” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote, is so placed as to indicate both a vote in favour of and a vote against the proposal, or

(d) on which anything is written or marked which, in the opinion of the local returning officer, is calculated to identify the elector,

shall be invalid and not counted, but a ballot paper shall not be invalid by reason only of its bearing the figure “1” or the word “one” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote in favour of or against the proposal.

(2) The local returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid.

(3) The local returning officer shall endorse the word “rejected” on any ballot paper which under this section is not counted. The local returning officer shall prepare a statement in such form as may be directed by the Minister showing the number of ballot papers rejected under each of the paragraphs (a) to (d) of subsection (1) and shall, on request, allow any agent present to copy such statement.

(4) The local returning officer may endorse on any ballot paper not rejected as invalid an indication of the officer's decision on it in relation to its validity without, however, interfering with any mark placed by the elector on the ballot paper.

(5) The decision of the local returning officer, whether expressed or implied by his acts, on any question which arises in relation to any ballot paper shall be final, subject only to reversal on a referendum petition.

Counting of the votes.

35.—(1) After the ballot papers have been mixed in accordance with section 114 of the Act of 1992 (as applied by section 33 ), the local returning officer shall, rejecting any that are invalid, arrange them in parcels according to the votes recorded on them and shall count and record the number of votes given in favour of the proposal which is the subject of the referendum and the number of votes given against that proposal and shall ascertain the total number of valid papers for the constituency concerned.

(2) Having counted the votes in accordance with subsection (1), the local returning officer shall forthwith notify the referendum returning officer, in such manner as the latter may direct, of the number of votes given in favour of the proposal and the number of votes given against the proposal and the total number of valid ballot papers.

Recount.

36.—(1) The local returning officer may and, if required by an agent appointed under paragraph (c) of section 26 (1), shall recount the votes recorded on all the ballot papers or on the ballot papers contained in any particular parcel.

(2) Subject to subsection (3), nothing in this section shall make it obligatory on the local returning officer to recount more than once the votes recorded on the ballot papers contained in any particular parcel or to comply with a request under this section by an agent which, in the opinion of the local returning officer, is frivolous or vexatious.

(3) Before signing the provisional referendum certificate under section 40 , the referendum returning officer may, in an appropriate case, direct any or every local returning officer to re-examine all the ballot papers for the constituency concerned and recount the votes recorded on such ballot papers and forthwith notify the referendum returning officer of the result of the re-examination and recount and the local returning officer shall comply with the terms of the direction.

Report to the referendum returning officer.

37.—(1) On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall furnish to the referendum returning officer a report in writing in the form directed by the Minister stating—

(a) the number of valid votes recorded in favour of the proposal which is the subject of the referendum,

(b) the number of valid votes recorded against that proposal, and

(c) the total number of valid votes recorded at the referendum in the constituency,

together with the statement referred to in section 34 (3).

(2) Where the same day is the polling day at two or more referenda, the local returning officer shall furnish a separate report in respect of each such referendum.

Retention and disposal of documents.

38.—(1) On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall place in separate sealed packets—

(a) the counted ballot papers,

(b) the ballot papers not counted because of invalidity under section 34 ,

(c) the unused and spoilt ballot papers, and

(d) the counterfoils of ballot papers issued at polling stations,

and shall mark on each packet particulars of its contents, the referendum to which they relate, the date of the polling day at the referendum concerned and the constituency to which they relate.

(2) The local returning officer shall also place in separate sealed packets—

(a) the marked copies of the register of electors used at polling stations,

(b) the ballot paper accounts and the statement referred to in section 114 of the Act of 1992 (as applied by section 33 ), and

(c) any authorisations issued by the local returning officer to electors pursuant to section 31 ,

and shall mark on each packet particulars of its contents, the referendum to which they relate, the date of the polling day at the referendum concerned and the constituency to which they relate.

(3) The local returning officer shall as soon as practicable, forward to the referendum returning officer the packets referred to in this section together with the packets and statement referred to in sections 76 and 83 (2) (other than paragraph (e) of that subsection) of the Act of 1992 (as applied by sections 28 and 29 ).

(4) The documents sent to the referendum returning officer in pursuance of this section shall be retained by that officer for 6 months from the date on which the provisional referendum certificate in respect of such referendum has become final. At the expiration of the said period, the referendum returning officer shall, unless otherwise directed by an order of the High Court or the referendum returning officer has reason to believe that the documents may be required for a purpose referred to in section 39 (3), cause the documents to be destroyed.

Inspection of ballot papers etc.

39.—(1) No person shall be allowed to inspect any of the documents mentioned in subsection (2) except under an order of the High Court.

(2) The documents referred to in subsection (1) are—

(a) the counterfoils of the ballot papers sent to postal voters in pursuance of section 28 .

(b) the counterfoils of the ballot papers delivered to special voters in pursuance of section 82 of the Act of 1992 (as applied by section 29 ),

(c) the documents referred to in subsections (2) and (3) of section 76 of the Act of 1992 (as applied by section 28 ), and

(d) the documents referred to in section 38 (1).

(3) An order referred to in subsection (1) shall not be made unless the court is satisfied that the inspection or production of the documents concerned is required for the purpose of instituting or maintaining a prosecution for an offence under a provision of the Act of 1992 specified in section 6 and as applied by that section or for the purpose of a referendum petition.

(4) An order referred to in subsection (1) may be made subject to such conditions as to persons, time and place and mode of inspection or production as the court may think expedient and shall make provision to ensure that the manner in which any voter voted shall not be disclosed.

(5) Where an order is made under subsection (1) in relation to a document referred to in that subsection—

(a) the production in a court by the referendum returning officer of that document shall, until the contrary is proved, be sufficient proof that the document relates to the referendum specified in the order, and

(b) any endorsement appearing on any packet produced in a court by the referendum returning officer shall, until the contrary is shown, be sufficient evidence that the contents of the packet are what they are stated to be in the endorsement.

The provisional referendum certificate.

40.—(1) As soon as the referendum returning officer has received from every local returning officer the report referred to in section 37 of the numbers of the votes recorded in the constituency, the referendum returning officer shall prepare from such reports and shall sign the provisional referendum certificate in the prescribed form stating—

(a) in the case of a constitutional referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and whether a majority of the votes recorded at the referendum was or was not recorded in favour of the proposal;

(b) in the case of an ordinary referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and the total number of presidential electors on the register of electors for the time being in force, and if the number of votes recorded against the proposal exceeds the number of votes recorded in favour of the proposal, whether the number of votes recorded against the proposal is or is not less than thirty-three and one third per cent of the said total number of presidential electors, and in any case whether such proposal was or was not vetoed at such referendum;

(c) in every case, the number of votes reported by the local returning officers to have been recorded in each constituency in favour of the proposal which is the subject of the referendum and the number of votes similarly reported to have been recorded in each constituency against the proposal.

(2) As soon as may be after signing the provisional referendum certificate, the referendum returning officer shall publish in Iris Oifigiúil a copy of that certificate together with a statement that such certificate will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.

(3) When a provisional referendum certificate has become final otherwise than by being confirmed by the High Court, the referendum returning officer shall endorse on such certificate a statement that it has so become final and shall send a copy thereof to the President and the Taoiseach.

(4) When a provisional referendum certificate has been confirmed or is deemed to have been confirmed by the High Court and is returned to the referendum returning officer with a statement of the fact of such confirmation endorsed thereon in accordance with this Act, the referendum returning officer shall send a copy of such certificate to the President and the Taoiseach.

Notification by Master of the High Court.

41.—Subject to the provisions of section 58 , where—

(a) application for leave to present a referendum petition in relation to a provisional referendum certificate has not been made to the High Court within the time limited by section 42 (2), or

(b) the High Court has refused all such applications made to it within the said time, or

(c) no referendum petition has been presented in relation to the provisional referendum certificate within the time limited by section 44 , or

(d) every referendum petition so presented has, under section 44 (4) or 50 (3), become null and void,

the Master of the High Court shall forthwith notify the referendum returning officer in writing accordingly.

PART IV

Referendum Petitions

Referendum petitions.

42.—(1) The validity of a provisional referendum certificate may, and may only, be questioned by a petition to the High Court (in this Act referred to as “a referendum petition”) in accordance with this Act.

(2) A referendum petition in relation to a provisional referendum certificate shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not later than seven days after the publication in Iris Oifigiúil of the certificate, by order grants leave to the person to do so.

(3) The High Court shall not grant leave under subsection (2) to present a referendum petition unless it is satisfied—

(a) that there is prima facie evidence of a matter referred to in section 43 in relation to which the referendum petition questions the provisional referendum certificate concerned, and

(b) that the said matter is such as to affect materially the result of the referendum as a whole.

(4) An application for leave to present a referendum petition may be made by the Director of Public Prosecutions or by any person who is registered or entitled to be registered as a presidential elector.

Grounds for referendum petition.

43.—(1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by—

(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6 ),

(b) obstruction of or interference with or other hindrance to the conduct of the referendum,

(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or

(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.

(2) Notwithstanding any other provision of this Act, a referendum petition shall not be dismissed on account of any informality in its contents which does not materially affect its substance.

Presentation of referendum petition.

44.—(1) A referendum petition shall be presented by being lodged in the Central Office of the High Court not later than three days after the grant of leave by the High Court under section 42 .

(2) (a) Subject to paragraph (b), a referendum petition (other than a petition by the Director of Public Prosecutions) shall not be accepted in the Central Office unless the petitioner lodges in the Central Office with the referendum petition security in the sum of £5,000 for any costs of the proceedings in relation to the referendum petition which may become payable by the petitioner.

(b) Where the court is satisfied that a petitioner is unable to lodge the amount specified in paragraph (a) or that the requirement would cause serious hardship, the court may require the petitioner to lodge such lesser amount as the court considers appropriate.

(c) The security required to be given by this subsection shall be given either by recognisance entered into by any number of sureties satisfactory to the court not exceeding four or by a deposit of money, or partly in one way and partly in the other.

(3) The petitioner shall, not later than five days after the lodgement of the referendum petition, give a copy of the petition—

(a) to the Minister,

(b) to the referendum returning officer,

(c) to any local returning officer concerned, and

(d) except in the case of a petition presented by the Director of Public Prosecutions, to the Director of Public Prosecutions.

(4) Where the petitioner fails to comply with the provisions of this section and section 45 the referendum petition shall become and be null and void.

Particulars in referendum petition.

45.—A referendum petition shall be signed and dated by the petitioner and shall specify—

(a) the provisional referendum certificate to which it relates,

(b) the grounds on which it is based,

(c) the remedy it seeks, and

(d) the name and address of the petitioner and the petitioner's solicitor or agent, if any.

Trial of referendum petition.

46.—(1) A referendum petition shall be tried by the High Court and references in this Part to the court shall be construed as references to the High Court.

(2) The following provisions shall have effect in relation to the trial of a referendum petition:

(a) in fixing the date for and conducting the trial, the court shall give the matter such priority as is reasonably possible;

(b) the trial shall be continued until its result is determined notwithstanding the death of any petitioner;

(c) the Director of Public Prosecutions may at any stage be represented at and take part in the trial as a party, whether of his own motion or at the request of the court;

(d) the referendum returning officer shall attend the trial and produce and deliver to the court the provisional referendum certificate and give such assistance as may be required of him by the court, but without prejudice to being called as a witness by any party;

(e) the local returning officer for a constituency to which the petition relates shall, at the request of the court, attend the trial and give such assistance as is requested by the court, but without prejudice to his being called as a witness by any party.

Counting of votes afresh.

47.—(1) The court may, for the purposes of the trial of a referendum petition, if it thinks fit, order—

(a) that all the votes cast at the referendum in a constituency shall be counted afresh, or

(b) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,

and where the court so orders, the provisions of this section shall have effect.

(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) and to such modifications (if any) as the court considers necessary, the provisions of this Act relating to the counting of votes at a referendum shall apply to such counting.

(3) Where votes are counted afresh pursuant to an order under this section, the court shall cause the following to be disregarded:

(a) votes recorded on ballot papers which are invalid by virtue of section 34 , and

(b) votes recorded on forged or counterfeited ballot papers.

(4) The court shall have power to reverse any decision of the local returning officer at the original count.

(5) The costs of giving effect to an order under this section shall be paid by the Minister for Finance out of the Central Fund or the growing produce thereof and section 16 shall, with respect to the services and expenses properly rendered or incurred by the local returning officer concerned for the purposes of, or in connection with, giving effect to the order, apply in the same manner as it applied in respect of the services and expenses rendered or incurred by the local returning officer for, or in connection with, the referendum.

Retaking referendum in a constituency.

48.—(1) At the trial of a referendum petition the court may order that the referendum to which the referendum petition relates shall be taken again in a constituency, and where the court so orders the following provisions shall have effect:

(a) the court shall, in its order under this section, appoint the day which shall be the polling day for the purpose of the retaking of the referendum in the constituency;

(b) the referendum shall be retaken in the constituency and the provisions of this Act in relation to the taking of a referendum shall apply to the retaking, with the substitution of the polling day appointed by the order of the court for the polling day appointed by the Minister;

(c) the referendum returning officer, having received the report of the local returning officer of the result of the counting of the votes at the retaking, shall forthwith report the result to the court.

(2) The court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to the court that the referendum was conducted in the constituency in accordance with the general principles laid down in this Act and that the non-compliance or error did not affect the result of the referendum as a whole.

Withdrawal of petition.

49.—(1) A referendum petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to subsections (3) and (4) was reasonable and, in addition to the foregoing, where a referendum petition is presented by more than one petitioner the court, before giving such leave, shall be satisfied that all the petitioners agree to the withdrawal.

(2) Except in the case of a referendum petition presented by the Director of Public Prosecutions, when applying for leave for the withdrawal of a referendum petition, the petitioner shall submit to the court an affidavit stating—

(a) the reasons for the proposed withdrawal, and

(b) that, to the best of the petitioner's knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdawal of the petition in consideration of any payment or for any substantial reason not stated in the affidavit.

(3) Notice of intention to apply for leave to withdraw a referendum petition shall be given by the petitioner by the publication in at least two daily newspapers circulating throughout the State of a notice to that effect and the notice shall also state the time and place at which the application will be made and that any presidential elector may apply to the court to be substituted for the petitioner.

(4) Except in the case of a referendum petition presented by the Director of Public Prosecutions, a copy of the affidavit mentioned in subsection (2) together with notice of the time and place at which the application will be made shall be given by the petitioner to the Director of Public Prosecutions who may be represented at and, if the Director thinks fit, oppose the application.

(5) Where the referendum petition has been presented by more than one petitioner, the affidavit mentioned in subsection (2) shall, unless the court otherwise directs, be made by all the petitioners.

(6) The withdrawal of a petition pursuant to this section shall not affect the liability of any person (or of that person's estate) for the payment of costs previously incurred.

Substitution of new petitioner.

50.—(1) On the hearing of an application for leave to withdraw a referendum petition, any person who, under section 42 , would be eligible to apply for leave to present a referendum petition, may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute the person accordingly.

(2) In case the court substitutes a petitioner under subsection (1) and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of or entering into which is declared by section 155 of the Act of 1992 to be an offence, the court may direct that the security for costs given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to the extent of the sum named in the security, the original petitioner (and sureties, if any), shall be liable to pay the costs of the substituted petitioner.

(3) In case the court does not make a direction under subsection (2), security equal in amount to that which would be required in the case of a new referendum petition, and subject to the like conditions, shall be given by or on behalf of the substituted petitioner within the period of five days after the date of the order of substitution, and in case such security is not given no further proceedings shall be had on the referendum petition and the petition shall, at the expiration of the said period, become and be null and void.

(4) Subject to the foregoing provisions of this section, a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner.

Death of or delay by a petitioner.

51.—(1) The following provisions shall apply and have effect in relation to a referendum petition presented by a person other than the Director of Public Prosecutions:

(a) where the sole or the last surviving petitioner dies at any time before the final order of the court on the trial of the petition, the court shall transfer the carriage of the petition to the Director of Public Prosecutions, and thereupon all subsequent proceedings on the petition shall be conducted as if the petition were a petition presented by the Director of Public Prosecutions;

(b) if the petitioner fails to proceed with reasonable speed with the proceedings on the petition, the court may, on the application of the Director of Public Prosecutions, either forthwith make a final order confirming without alteration the provisional referendum certificate which was the subject of the petition or transfer the carriage of the petition to the Director.

(2) Nothing in this section shall operate to prevent the court ordering the costs or any part of the costs of the proceedings in relation to the referendum petition to be paid out of or by means of the security for costs given by a deceased petitioner or by a petitioner who has failed to proceed with reasonable speed.

Witnesses.

52.—(1) The court shall be entitled of its own volition, at any time during the trial of a referendum petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial and, where the court so directs, the cost of bringing the person before the court (including any moneys payable as witness's expenses) shall be regarded as part of the costs of the referendum petition.

(2) Subject to subsection (3), a person who is called as a witness at the trial of a referendum petition shall not be excused from answering any question relating to any offence at or connected with the relevant referendum on the ground that the answer thereto may incriminate or tend to incriminate that person or on grounds of privilege: provided that—

(a) where the court is satisfied that a witness has answered truly all the questions which the witness is required by the court to answer, the court shall issue a certificate stating that the witness has so answered, and

(b) an answer by a person who has received such a certificate to a question put at the trial of a referendum petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be, in any proceeding, civil or criminal, admissible in evidence against that person.

(3) Nothing in this section shall be construed as affecting the right of any party to a referendum petition to call any person as a witness.

Costs of referendum petition.

53.—(1) All costs, other than the costs of counting votes afresh under section 47 or retaking the referendum in a constituency under section 48 , of and incidental to a referendum petition shall be in the discretion of the court which shall have power to order the costs or any part of the costs of any party to the petition to be paid by any other such party, and, where the costs or any part of the costs of any such party are so ordered to be paid by the petitioner, the court shall, where necessary, make provision for the payment of those costs, to the extent of the amount named in the security given by the petitioner, out of or by means of such security.

(2) Without prejudice to subsection (1), where, on the trial of a referendum petition, it appears to the court that any person committed an electoral offence in relation to the relevant referendum, the court may, after giving the person an opportunity of being heard to show cause why the order should not be made, if it so thinks fit, order the whole or part of the costs of the petition other than the costs of counting votes afresh under section 47 or retaking the referendum in a constituency under section 48 to be paid by that person.

Further provisions regarding costs.

54.—(1) Subject to subsection (4), the costs and other expenses incurred by or on behalf of the referendum returning officer or any local returning officer at the trial of a referendum petition shall be paid out of the Central Fund.

(2) Costs awarded to the referendum returning officer or any local returning officer at the trial of a referendum petition shall be a simple contract debt due to the Minister for Finance and may be recovered by that Minister in any court of competent jurisdiction.

(3) Subject to subsections (4) and (5), costs awarded against the referendum returning officer or any local returning officer at the trial of a referendum petition shall be paid out of the Central Fund.

(4) Where the court is satisfied that the referendum returning officer or any local returning officer has been grossly negligent in the discharge of the duties of the office, the court may order that the officer shall be personally liable for any costs and expenses which the court finds to have been incurred by reason of such negligence.

(5) Where an order is made under subsection (4) any costs and expenses awarded against an officer which are paid out of the Central Fund shall be a simple contract debt due to the Minister for Finance by the officer, and may be recovered by that Minister in any court of competent jurisdiction.

Statement of case to Supreme Court.

55.—(1) At any stage of the trial of a referendum petition the court may, if it so thinks proper, on its own motion or on the application of any party to the petition, state a case for the opinion of the Supreme Court on any question of law arising at the trial.

(2) Notwithstanding anything contained in this Act, where a case is stated under this section the court shall not determine the referendum petition until the Supreme Court has given its decision and may adjourn the trial or any part thereof until such decision is given.

(3) Costs incurred in relation to a case stated under this section shall for all purposes be part of the costs incurred in relation to the referendum petition.

Service of documents.

56.—Where a copy of an order, referendum petition or other document is required by this Act to be given to a person, it shall be addressed and given to that person in some one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which the person ordinarily resides, or in a case in which an address for service has been furnished, at that address.

The final order on referendum petition.

57.—(1) At the trial of a referendum petition the court shall determine the matter at issue and the final order of the court on the trial of the referendum petition shall either—

(a) confirm without alteration the provisional referendum certificate which was the subject of the petition, or

(b) direct that the said certificate shall be amended in accordance with the findings of the court (including the result of any counting afresh of votes or any retaking of the referendum) and confirm the certificate as so amended.

(2) Where two or more referendum petitions are presented in accordance with this Act in respect of the same provisional referendum certificate the court shall make one consolidated final order determining all such petitions and subsection (1) shall apply in relation to such consolidated order.

(3) Where the court confirms a provisional referendum certificate without alteration, the court shall cause a statement of the fact of such confirmation to be endorsed on such certificate and shall cause such certificate so endorsed to be returned forthwith to the referendum returning officer.

(4) Where the court directs a provisional referendum certificate to be amended and confirms the certificate as so amended, the court shall cause the certificate to be amended in accordance with such direction, and shall cause a statement of the fact that such amendment was made by order of the court and of the fact that the certificate as so amended was confirmed by the court to be endorsed on the certificate and shall cause the certificate so amended and endorsed to be returned forthwith to the referendum returning officer.

(5) A provisional referendum certificate duly endorsed in accordance with this section shall, when it is received by the referendum returning officer from the High Court, forthwith become and be, in the form in which it was confirmed by the court, final and incapable of being further questioned in any court and shall, in that form, be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum.

Provisions in respect of referenda having the same polling day.

58.—Where the same day is the polling day in respect of two or more referenda and a referendum petition or two or more referendum petitions questioning the provisional referendum certificate relating to one only of the referenda is or are presented in accordance with this Act, or referendum petitions questioning some but not all of the provisional referendum certificates relating to the referenda are presented in accordance with this Act, the following provisions shall have effect notwithstanding anything inconsistent therewith contained in this Act:

(a) a provisional referendum certificate relating to any of the referenda shall, pending the operation of paragraph (e), not become final;

(b) it shall be lawful for the Director of Public Prosecutions with the leave of the court, to present at any time a referendum petition questioning any provisional referendum certificate which relates to any of the referenda and has not been confirmed by the court and is not the subject of a referendum petition presented in accordance with this Act;

(c) all the referendum petitions questioning any of the provisional referendum certificates relating to any of the referenda shall, so far as practicable, be heard and determined by the same judge, and all or any two or more of the referendum petitions may, at the discretion of the court, either be tried together or consolidated;

(d) the final orders of the court on all the trials of the referendum petitions shall be made on the same day;

(e) when the final orders have been made, every provisional referendum certificate relating to any of the referenda in respect of which no referendum petition was presented in accordance with this Act shall be deemed to have been confirmed by the court, and the court shall cause to be endorsed on every such certificate a statement that it is deemed to have been confirmed by the court, and the court shall cause the certificate so endorsed to be returned forthwith to the referendum returning officer;

(f) the referendum returning officer shall deliver to the court for endorsement under the foregoing paragraph every provisional referendum certificate which is deemed under that paragraph to have been confirmed by the court, and every such certificate when so endorsed and received by the referendum returning officer from the court shall forthwith become and be final and incapable of being questioned in any court and shall be conclusive evidence of the voting at and result of the referendum to which it relates.

FIRST SCHEDULE

Enactments Repealed

Section 5 .

SECOND SCHEDULE

Forms of Ballot Paper

Section 24 .

Part I

FORM OF BALLOT PAPER AT CONSTITUTIONAL REFERENDUM

(Front of Paper)

Part II

FORM OF BALLOT PAPER AT ORDINARY REFERENDUM

(Front of Paper)