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12 1994

REFERENDUM ACT, 1994

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.