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8 1942

REFERENDUM ACT, 1942

PART III.

Referendum Petitions.

Definitions in this Part of this Act.

33. —In this Part of this Act—

the expression “corrupt practice” means an offence which is a corrupt practice within the meaning of the Prevention of Electoral Abuses Act, 1923 (No. 38 of 1923),

the expression “duly presented” means, in relation to a referendum petition, that such petition either was presented in accordance with this Part of this Act and did not become null and void after such presentation or was presented by the Attorney-General with the leave of the court under the provision in that behalf contained in this Part of this Act.

Referendum petitions.

34. —(1) A petition (in this Act referred to as a referendum petition) questioning the validity of a provisional referendum certificate may be presented to the High Court in accordance with this Part of this Act by any person authorised by this section so to do.

(2) A referendum petition may question a provisional referendum certificate either—

(a) in respect of the particulars stated in such certificate of the voting in any one constituency, on the ground that corrupt practices prevailed extensively at or in relation to the taking of the referendum in that constituency or on the ground of error or misconduct (whether by act or omission) on the part of the local returning officer for that constituency, or

(b) in respect of the particulars stated in such certificate of the aggregate voting at the referendum as a whole or of the result of the referendum as so stated, on the ground of error on the part of the referendum returning officer or, in the case of an ordinary referendum, on the ground of error in relation to the number of Dáil electors on the register of electors for the time being in force.

(3) A referendum petition may be presented by any of the following persons, that is to say:—

(a) in the case of a petition in respect of the voting in one constituency, by any person who voted in that constituency at the referendum or who claims that he was entitled to vote in that constituency at the referendum but was unlawfully refused a ballot paper or was in any other manner unlawfully prevented from so voting;

(b) in the case of a petition in respect of the aggregate voting at the referendum as a whole or in respect of the result of the referendum, by any person who voted at the referendum;

(c) in any case; by the Attorney-General.

(4) A provisional referendum certificate shall not be capable of being questioned in any manner in any court save only by a referendum petition presented to the High Court under this Part of this Act.

The respondent to a referendum petition.

35. —(1) Where a referendum petition is presented by a person other than the Attorney-General, the Attorney-General shall be named therein as the respondent thereto.

(2) Where a referendum petition is presented by the Attorney-General, no person shall be named therein as the respondent thereto but the High Court may, if it so thinks proper, assign counsel to present the case against the petition.

(3) Where, in a referendum petition or any particulars filed in relation thereto or at the hearing of a referendum petition, any particular person is alleged to have been guilty of a corrupt practice in relation to the referendum or where a copy of a referendum petition is served on a particular person by direction of the High Court, the High Court may, on the application of that person, add or name him as a respondent to such petition.

(4) Where, at the trial of a referendum petition presented by the Attorney-General, a question of law arises in relation to anything done or omitted by the referendum returning officer or a local returning officer, the High Court may, on the application of the Attorney-General, name the referendum returning officer or such local returning officer (as the case may be) as respondent to such petition to argue the said question of law, but for no other purpose.

(5) Where the referendum returning officer or a local returning officer is named as respondent to a referendum petition under the next preceding sub-section of this section, the costs and expenses incurred by such officer in or about appearing on and arguing the question of law shall be defrayed by the Minister for Finance out of moneys provided by the Oireachtas.

(6) References in this section to arguing a question of law shall be construed and have effect as including arguing such question before the Supreme Court on a case stated (if any) thereon as well as arguing such question before the High Court.

General provisions in respect of referendum petitions.

36. —The following provisions shall apply and have effect in relation to every referendum petition, that is to say:—

(a) the petition shall be presented by being lodged in the Central Office of the High Court, and shall be so presented not later than twenty-one days after the publication in the Iris Oifigiúil of the provisional referendum certificate to which the petition relates;

(b) save where the Attorney-General is the petitioner, a copy of the petition shall be served on the Attorney-General within five days after the day on which it is presented, and an affidavit verifying such service shall be filed in the Central Office of the High Court within the said five days;

(c) save where the Attorney-General is the petitioner, the petitioner shall, within five days after the petition is presented, give security for the costs of the Attorney-General to the amount of one thousand pounds either,

(i) by the lodgment of the sum of one thousand pounds with the Accountant of the Courts of Justice, or

(ii) by entering into a recognisance, with three sureties accepted by the Master of the High Court, conditioned for the payment of the costs of the Attorney-General to such (if any) amount not exceeding one thousand pounds as shall be ordered by the High Court;

(d) if, in a case to which the foregoing provisions of this section in relation to serving a copy of the petition, filing an affidavit of service, and giving security for costs apply, those provisions are not all complied with, the petition shall, at the expiration of the time limited by this section for complying with those provisions, become and be null and void;

(e) the petition shall set out with reasonable particularity the grounds on which it is based and shall pray that the provisional referendum certificate to which it relates shall be reviewed by the High Court;

(f) the petition shall be signed by the petitioner or by his counsel;

(g) where the ground or one of the grounds on which the petition is based is that corrupt practices prevailed extensively in relation to the taking of the referendum in a particular constituency, such corrupt practices need only be stated generally in the petition, but save where the Attorney-General is the petitioner, the petitioner shall lodge a full and detailed statement of the particulars of such corrupt practices in the Central Office of the High Court and serve a copy thereof on the Attorney-General within fourteen days after the presentation of the petition;

(h) where a statement of particulars of corrupt practices has been lodged in pursuance of the next preceding paragraph of this section, the High Court may, at any time on the application of the Attorney-General, require the petitioner to furnish further and better particulars of such corrupt practices;

(i) if, at the expiration of twenty-one days from the publication of a provisional referendum certificate in the Iris Oifigiúil, no referendum petition has been presented in relation to such certificate, the Master of the High Court shall, immediately on the expiration of those twenty-one days, inform the referendum returning officer in writing of that fact;

(j) if a referendum petition is presented by the Attorney-General within the time limited by this section, the Master of the High Court shall forthwith inform the referendum returning officer in writing of that fact;

(k) if a referendum petition is presented by a person other than the Attorney-General within the time limited by this section, the Master of the High Court shall forthwith inform the referendum returning officer in writing of that fact and shall also, after, but not more than seven days after, the expiration of twenty-one days from the publication of the relevant provisional referendum certificate in the Iris Oifigiúil, inform the referendum returning officer in writing either (as the facts may be)—

(i) that the provisions of this section in relation to filing an affidavit of service on the Attorney-General and in relation to giving security for costs have been duly complied with in respect of such, petition, or

(ii) that the said provisions have not been complied with in respect of such petition and that such petition has therefore become null and void;

(l) unless or until rules of court are made in respect of referendum petitions, the rules of court for the time being in force in respect of plenary summonses and the trial of actions in the High Court shall, subject to the provisions of this Part of this Act, apply and have effect in respect of referendum petitions and the trial thereof with the necessary modifications;

(m) in the reckoning of any period of time mentioned in this section which does not exceed ten days, Sundays, bank holidays, Christmas Day, and Good Friday shall be excluded.

Giving of notice to interested persons.

37. —(1) Where, at any time before or during the trial of a referendum petition, it appears to the High Court that a particular person is so concerned in or affected by such petition that he ought to have notice thereof, the High Court may, on the application of the Attorney-General or on its own motion, direct that a copy of such petition together with such notice as is mentioned in the next following sub-section of this section be served on that person by the Attorney-General.

(2) The notice to be served on a person in pursuance of a direction of the High Court under the next preceding sub-section of this section shall state that it appears to the High Court that such person is so concerned in or affected by the referendum petition of which a copy is served with such notice that he ought to have notice of that petition, and the said notice shall also state that such person is entitled under this Part of this Act to apply, if he so thinks fit, to the High Court to have himself added or named as a respondent to such petition.

The trial of a referendum petition.

38. —(1) The following provisions shall have effect in respect of the trial of a referendum petition, that is to say:—

(a) every referendum petition shall be tried by the High Court and every such trial shall be before three judges of that court;

(b) the trial shall take place in the City of Dublin, but it shall be lawful for the court to transfer the trial or any part thereof to any other place whenever, owing to the number of local witnesses or for any other reason, such transfer appears to the court to be expedient;

(c) if the trial or any part thereof is transferred to a place outside the City of Dublin, sections 41 , 42 , 43 , and 44 of the Courts of Justice Act, 1936 (No. 48 of 1936), shall apply and have effect as if the court were the High Court on Circuit and the said place (if it is not an appeal town) were an appeal town;

(d) the evidence at the trial shall, save where the court otherwise directs, be given viva voce;

(e) the petitioner and the respondent (if any) shall each be entitled to adduce evidence and, where there are two or more respondents, each of them shall be entitled to be heard and adduce evidence separately;

(f) where two or more referendum petitions are presented in respect of the same provisional referendum certificate, all such petitions shall, so far as practicable, be heard and determined by the same three judges, and all or any two or more of such petitions may, at the discretion of the court, be tried together or be consolidated;

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

(h) no person shall be asked or required to state how he voted at the referendum;

(i) the costs of all parties to the petition shall be in the discretion of the court, and the court 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 the Attorney-General are so ordered to be paid by the petitioner, the court shall make provision for the payment, where necessary, of such costs out of or by means of the security for costs given by the petitioner.

(2) The court trying a referendum petition shall be entitled, at any time during such trial, to direct that a particular person shall be brought before the court and shall give evidence at such trial, and whenever the court so directs, the following provisions shall have effect, that is to say:—

(a) the court shall have power to compel the attendance of the person to whom such direction relates, and the Attorney-General shall take all such steps as the court shall direct for bringing such person before the court;

(b) the costs and expenses of bringing such person before the court (including any moneys payable to him as witness's expenses) shall be defrayed in the first instance by the Attorney-General but shall be part of the Attorney-General's costs and shall ultimately be borne accordingly;

(c) the said person shall be compellable to give evidence and shall be examined by the court and may be cross-examined by any party to the referendum petition;

(d) the said person shall not be entitled to refuse to answer any question on the ground that such answer would incriminate him in respect of any crime or offence.

Production of documents by the referendum returning officer.

39. —(1) At the trial of a referendum petition, the court shall be entitled to require the referendum returning officer to produce and deliver to the court all or any of the documents in his possession relating to the referendum, including reports, packets, and documents sent to him by local returning officers.

(2) All documents delivered to the court under the foregoing sub-section of this section shall be retained by the court until the relevant provisional referendum certificate has become final and shall then be returned to the referendum returning officer.

(3) While any documents are retained by the court under this section, it shall be lawful for the court to authorise any particular person or persons to inspect all or any of such documents and, where necessary, to open sealed packets, and it shall be lawful for the court to impose such conditions and restrictions as it shall think proper in respect of any such inspection.

Re-taking a referendum in a constituency.

40. —(1) At the trial of a referendum petition which questions the validity of a provisional referendum certificate in respect of the voting in a particular constituency, it shall be lawful for the High Court to order that the referendum shall be taken again in that constituency, and when the High Court so orders the following provisions shall have effect, that is to say:—

(a) the court shall, in the said order, appoint the day which shall be the polling day for the purpose of such retaking of the referendum;

(b) the referendum shall be retaken in the said constituency and the provisions of this Act in relation to the taking of a referendum (including the provisions relating to payment of the referendum returning officer for his services and expenses and to the charges and expenses of local returning officers) shall apply to such retaking, with the substitution of the polling day appointed by the said order of the court for a polling day appointed by the Minister;

(c) when the referendum returning officer has received the report of the local returning officer of the result of the counting of the votes at such retaking, he shall forth-with report such result to the High Court.

(2) The High Court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with the Rules contained in the First Schedule to this Act or a mistake in the use of forms prescribed by or under this Act where it appears to the court that such referendum was conducted in that constituency in accordance with the general principles laid down in the Act and that such non-compliance or mistake did not affect the result of the referendum in the said constituency.

The final order on a referendum petition.

41. —(1) Where only one referendum petition is duly presented in respect of a provisional referendum certificate, the final order of the court on the trial of such referendum petition shall either—

(a) confirm without alteration the said 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 retaking of the referendum) and confirm the said certificate as so amended.

(2) Where two or more referendum petitions are duly presented in respect of the same provisional referendum certificate, then and in such case, whether such petitions are tried separately or are tried together or are consolidated, one consolidated final order shall be made by the court on such petitions at the conclusion of the trials or trial thereof and such consolidated final order shall either—

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

(b) direct that the said certificate shall be amended in accordance with the several findings of the court in regard to the said petitions respectively (including the result of any retaking of the referendum) and confirm the said certificate as so amended.

(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 by a registrar of the High Court 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 such certificate as so amended, the court shall cause such certificate to be amended in accordance with such direction, and shall further cause a statement of the fact that such amendment was made by order of the court and of the fact that such certificate as so amended was confirmed by the court to be endorsed on such certificate by a registrar of the High Court, and shall cause such 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.

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

(a) a provisional referendum certificate relating to any of such referenda shall not become final by reason of no referendum petition questioning such certificate having been duly presented;

(b) it shall be lawful for the Attorney-General, with the leave of the High Court, to present at any time a referendum petition questioning any provisional referendum certificate which relates to any of the said referenda and has not been confirmed by the High Court and is not the subject of a referendum petition duly presented;

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

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

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

(f) the referendum returning officer shall deliver to the High Court for endorsement under the next preceding paragraph of this sub-section 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 High Court shall forthwith become and be final and incapable of being questioned in any court and shall be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum.

Death of or delay by a petitioner.

43. —The following provisions shall apply and have effect in relation to every referendum petition presented by a person other than the Attorney-General, that is to say:—

(a) where there are two or more petitioners and one or more but not all of them dies or die at any time before the final order of the court on the trial of the petition, the surviving petitioner or petitioners shall be entitled to carry on the petition subject to such application or order as may be required by rules of court;

(b) where the only or the last surviving petitioner dies at any time before the final order of the court on the trial of the petition, the High Court shall, on application of the Attorney-General, transfer the carriage of the petition to the Attorney-General, and thereupon all subsequent proceedings on the petition shall be conducted as if the petition were a petition presented by the Attorney-General;

(c) if the petitioner fails to proceed with reasonable speed with the proceedings on the petition, the High Court may, on the application of the Attorney-General, 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 Attorney-General and authorise him to proceed on the petition as if it had been presented by him;

(d) nothing in this section shall operate to prevent the High Court ordering the costs or part of the costs of the Attorney-General 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.

Appeal by case stated to the Supreme Court.

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

(2) When the High Court states a case for the opinion of the Supreme Court under this section, the High Court shall not make any final order in relation to the referendum petition in connection with which such case is stated until the Supreme Court has given its decision on the question referred to it by such case, and the High Court may adjourn the trial or any part of the trial of such referendum petition until such decision is given.

(3) The costs of all parties in or about a case stated for the Supreme Court under this section shall for all purposes be part of the costs of such parties respectively in or about the referendum petition in connection with which such case is stated.