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Electoral System Referendum Act, 2007, S.O. 2007, c. 1 - Bill 155

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EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 155 and does not form part of the law.  Bill 155 has been enacted as Chapter 1 of the Statutes of Ontario, 2007.

The Electoral System Referendum Act, 2007 provides that if the Citizens’ Assembly on Electoral Reform recommends the adoption of an electoral system different from Ontario’s current one, a referendum on the recommended electoral system shall be held in conjunction with the 2007 general election.  The referendum question will be established by an order of the Lieutenant Governor in Council.

The result of the referendum is binding if the recommended electoral system is selected in,

(a) at least 60 per cent of all the valid referendum ballots cast; and

(b) more than 50 per cent of the valid referendum ballots cast in each of at least 64 electoral districts.

The new Act provides that the Election Act applies to the referendum, with necessary modifications, as if the referendum were a general election, and also sets out detailed special rules for the application of the Election Act to the referendum.  There will be a separate referendum ballot, and referendum ballots will be counted separately, after the election ballots have been counted.  Registered referendum campaign organizers will be entitled to appoint scrutineers whose functions are limited to the referendum.  Persons who act as referendum scrutineers may not also act as election scrutineers.

Provision is made for regulations governing the referendum campaign and referendum campaign finances.  These could require referendum campaign organizers to register with the Chief Election Officer and to provide financial reports, and could establish contribution limits and spending limits.

 

 

chapter 1

An Act to provide for a referendum on Ontario’s electoral system

Assented to April 18, 2007

 

CONTENTS

General

1.

2.

3.

4.

5.

Definitions

Referendum required

Question

Decision threshold

Effect of binding result

Application of Election Act

6.

7.

8.

9.

10.

11.

Application of Election Act

Referendum ballot

Official tabulations

Who to be present at recount

Offence provisions

Other modifications to Election Act

Role of Chief Election Officer

12.

13.

14.

15.

Powers and duties of Chief Election Officer

Investigation and examination

Information

Forms

Offences

16.

17.

Offences, referendum campaign

Offences, voting in referendum

Expenses of Act

18.

Expenses of Act

Regulations

19.

Regulations

Repeal, Commencement and Short Title

20.

21.

22.

Repeal

Commencement

Short title

 

Table 1

Table 2

Special rules relating to scrutineers (section 11)

Other special rules (section 11)

______________

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

General

Definitions

1. In this Act,

“2007 general election” means the general election required by clause 9 (2) (a) of the Election Act that is to be held on October 4, 2007 or on an alternate day as described in subsections 9.1 (6) and (7) of that Act; (“élection générale de 2007”)

“election ballot” means the ballot used in the 2007 general election; (“bulletin de vote électoral”)

“referendum ballot” means the ballot described in subsection 7 (1); (“bulletin de vote référendaire”)

“referendum campaign organizer” means a person or entity who organizes a campaign to promote a particular result in the referendum or advertises for that purpose; (“organisateur de campagne référendaire”)

“registered referendum campaign organizer” means a referendum campaign organizer who is registered in accordance with the regulations; (“organisateur de campagne référendaire inscrit”)

“regulations” means the regulations made under this Act. (“règlements”) 

Referendum required

2. If the Citizens’ Assembly on Electoral Reform recommends the adoption of an electoral system different from Ontario’s current one, a referendum on the recommended electoral system shall be held in conjunction with the 2007 general election.

Question

3. (1) The referendum question, in both English and French, shall be established by an order of the Lieutenant Governor in Council.

Wording

(2) The wording of the referendum question shall be clear, concise and impartial.

Decision threshold

4. The result of the referendum is binding if the recommended electoral system is selected in,

(a) at least 60 per cent of all the valid referendum ballots cast; and

(b) more than 50 per cent of the valid referendum ballots cast in each of at least 64 electoral districts.

Effect of binding result

5. If the result of the referendum is binding, the government that is formed as a result of the 2007 general election shall, on or before December 31, 2008, introduce legislation to adopt the recommended electoral system.

Application of Election Act

Application of Election Act

6. The Election Act applies to the referendum with necessary modifications, including the modifications set out in this Act, as if the referendum were a general election.

Referendum ballot

7. (1) The referendum ballot shall be separate from the election ballot, and the following provisions apply to the referendum ballot instead of sections 34 and 35 of the Election Act:

1. The referendum question shall be printed on the ballot in both English and French.

2. The referendum question and the outline of the circle in which the voter makes a mark to indicate his or her answer shall be printed in black and the rest of the face of the ballot shall be the natural colour of the ballot paper.

3. The back of the ballot shall have a distinguishing feature determined by the Chief Election Officer.

4. The referendum ballots shall be numbered consecutively on the stubs and shall be stapled or stitched into units as determined by the Chief Election Officer.

5. The Chief Election Officer shall ensure that a sufficient number of referendum ballots for each electoral district is printed on the approved paper.

6. The back of each referendum ballot shall show the name of the electoral district, the date of polling and the name of the printer.

7. The printer shall provide to the Chief Election Officer the affidavit prescribed under the Election Act as to the quantity of ballot paper received and its disposition, including the total number of ballots printed and delivered to the Chief Election Officer.

One ballot box

(2) The same ballot box shall be used for both referendum ballots and election ballots.

Counting of ballots

(3) The following rules apply to the counting of referendum ballots and election ballots:

1. On opening the ballot box as described in subsection 57 (1) of the Election Act, the deputy returning officer shall sort the ballots so that all the referendum ballots are separated from all the election ballots.

2. The further steps described in sections 57 to 60 of the Election Act shall be completed in their entirety, first with respect to the election ballots, then with respect to the referendum ballots.

Official tabulations

8. The official tabulations described in subsection 65 (1) of the Election Act shall be conducted separately, first with respect to the 2007 general election and then with respect to the referendum, and the following rules apply for that purpose:

1. Candidates and scrutineers appointed by candidates are entitled to be present at the official tabulation with respect to the 2007 general election, but not at the official tabulation with respect to the referendum.

2. Scrutineers appointed by registered referendum campaign organizers are entitled to be present at the official tabulation with respect to the referendum, but not at the official tabulation with respect to the 2007 general election.

Who to be present at recount

Referendum

9. (1) The following provisions apply, instead of subsection 73 (3) of the Election Act, to recounts with respect to the referendum:

1. The returning officer and the election clerk shall be present at the recount.

2. Each registered referendum campaign organizer who appointed a scrutineer in the electoral district is entitled,

i. to be represented by counsel,

ii. to have present at the recount, and to be represented by, the scrutineers whom the judge permits,

iii. to be present or to have a person designated by the organizer present at the recount, if the organizer is an individual, and

iv. to have a person designated by the organizer present at the recount, if the organizer is not an individual.

3. Other persons may be present at the recount if the judge permits.

4. No other person shall be present at the recount, except as described in paragraph 6.

5. If the judge is of the opinion that ballot envelopes containing election ballots may have to be opened,

i. the recount shall be adjourned, without the envelopes being opened, and

ii. each candidate shall be given at least two days notice that the envelopes may be opened.

6. When the recount resumes after notice is given under paragraph 5, each candidate is entitled, for the purposes of paragraphs 7 and 8,

i. to be present at the recount and to be represented by counsel, and

ii. to have present at the recount, and be represented by, the scrutineers whom the judge permits.

7. A candidate who is present at the recount under paragraph 6 is entitled to make submissions to the judge on whether ballot envelopes containing election ballots should be opened.

8. If ballot envelopes containing election ballots are opened, persons who are present at the recount under paragraph 6 are entitled to be present at,

i. the opening of the envelopes,

ii. the judge’s examination of the ballots to determine whether any referendum ballots have been included, and

iii. the resealing of the envelopes.

2007 general election

(2) At a recount with respect to the 2007 general election, the following provisions apply in addition to subsection 73 (3) of the Election Act if the judge is of the opinion that ballot envelopes containing referendum ballots may have to be opened:

1. The recount shall be adjourned, without the envelopes being opened.

2. Each registered referendum campaign organizer who appointed a scrutineer in the electoral district shall be given at least two days notice that the envelopes may be opened.

3. When the recount resumes after notice is given under paragraph 2, each registered referendum campaign organizer who appointed a scrutineer in the electoral district is entitled, for the purposes of paragraphs 4 and 5,

i. to be represented by counsel,

ii. to have present at the recount, and to be represented by, the scrutineers whom the judge permits,

iii. to be present or to have a person designated by the organizer present at the recount, if the organizer is an individual, and

iv. to have a person designated by the organizer present at the recount, if the organizer is not an individual.

4. A registered referendum campaign organizer or representative of a registered referendum campaign organizer who is present at a recount under paragraph 3 is entitled to make submissions to the judge on whether ballot envelopes containing referendum ballots should be opened.

5. If ballot envelopes containing referendum ballots are opened, persons who are present at the recount under paragraph 3 are entitled to be present at,

i. the opening of the envelopes,

ii. the judge’s examination of the ballots to determine whether any election ballots have been included, and

iii. the resealing of the envelopes.

Offence provisions

Election Act, ss. 91-98

10. (1) Without limiting the generality of section 6, sections 91 to 98 of the Election Act apply to the referendum with necessary modifications, including the modifications set out in this Act, as if the referendum were a general election.

Voting when not qualified, etc.

(2) Section 17 of this Act applies, in respect of voting in the referendum, instead of section 90 of the Election Act.

Other modifications to Election Act

11. Additional special rules for the application of the Election Act to the referendum are set out in Tables 1 and 2 of this Act.

Role of Chief Election Officer

Powers and duties of Chief Election Officer

12. (1) The Chief Election Officer,

(a) shall assist registered referendum campaign organizers in the preparation of reports required under this Act; 

(b) shall examine all financial reports provided to him or her under the regulations;

(c) may conduct investigations and examinations of the financial affairs of referendum campaign organizers;

(d) may provide any guidelines for the proper administration of this Act that he or she considers necessary for the guidance of auditors, referendum campaign organizers and their officers; and

(e) shall publish on a website on the Internet,

(i) guidelines provided under clause (d),

(ii) directions given under subsection (2), and

(iii) reports provided by registered referendum campaign organizers.

Matters not provided for

(2) If, in the Chief Election Officer’s opinion, a situation exists for which this Act and the regulations do not make provision, the Chief Election Officer may make appointments or give directions as he or she considers proper and anything done in compliance with such a direction is not open to question.

Notice

(3) On giving a direction under subsection (2), the Chief Election Officer shall immediately give notice of it to each registered referendum campaign organizer.

Internet publication

(4) Information published under clause (1) (e) shall remain available for at least six years after the date of original publication.

Prohibition

(5) The addresses of contributors shall not be published under subclause (1) (e) (iii).

Investigation and examination

13. (1) For the purpose of carrying out any investigation or examination under this Act, the Chief Election Officer has the powers of a Commission under Part II of the Public Inquiries Act, which Part applies to the investigation or examination as if it were an inquiry under that Act.

Same

(2) For the purposes of an investigation or examination under this Act, a representative of the Chief Election Officer, on producing that person’s authorization to enter the premises (referred to in the authorization) in which the books, papers and documents of a referendum campaign organizer relevant to the subject-matter of the investigation or examination are kept, may at any reasonable time enter the premises and examine the books, papers and documents.

Information

14. (1) If information with respect to the affairs of a referendum campaign organizer is reasonably necessary for the performance of the Chief Election Officer’s duties under this Act, he or she may request the information and the referendum campaign organizer shall provide it.

Same

(2) The information shall be provided within 30 days after a written request is received, or within the longer period fixed by the Chief Election Officer.

Forms

15. All applications, returns, statements, balance sheets and other documents required to be filed with the Chief Election Officer under the regulations shall be filed in the form prescribed by the Chief Election Officer.

Offences

Offences, referendum campaign

16. (1) No person or entity shall knowingly contravene any provision of the regulations.

False statement

(2) No person or entity shall knowingly make a false statement in any application, report or other document filed with the Chief Election Officer under this Act.

False information

(3) No person or entity shall knowingly give false information to the chief financial officer of a referendum campaign organizer or to another person authorized to accept contributions.

Penalties

(4) A person or entity who contravenes subsection (1), (2) or (3) is guilty of an offence and liable, on conviction, to a fine of not more than,

(a) $5,000, in the case of an individual;

(b) $50,000, in the case of a corporation, trade union or other entity.

Style of prosecution

(5) A prosecution for an offence under this Act may be instituted against a referendum campaign organizer that is not an individual in its own name and, for the purposes of the prosecution, the referendum campaign organizer is deemed to be a person.

Vicarious responsibility

(6) Any thing done or omitted by an officer, official or agent of a referendum campaign organizer within the scope of his or her authority to act on the referendum campaign organizer’s behalf is deemed to be a thing done or omitted by the referendum campaign organizer.

Consent of Chief Election Officer

(7) No prosecution shall be instituted under this section without the Chief Election Officer’s consent. 

Limitation

(8) No prosecution shall be instituted under this section more than two years after the facts on which it is based first came to the Chief Election Officer’s knowledge.

Offences, voting in referendum

17. (1) No person shall,

(a) vote in the referendum if the person is not qualified to vote in accordance with the Election Act;

(b) vote in the referendum more than once; or

(c) vote in the referendum in an electoral district or polling division other than the one in which he or she is entitled to vote under the Election Act.

Same

(2) A person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $5,000.

Expenses of Act

Expenses of Act

Payment for services

18. (1) Any amounts payable by the Province of Ontario for services performed under this Act are payable out of the Consolidated Revenue Fund.

Premises and equipment

(2) The Chief Election Officer may lease any premises and acquire any equipment and supplies that are necessary to properly carry out his or her responsibilities under this Act.

Assistance

(3) The Chief Election Officer may from time to time appoint persons with technical or special knowledge of any kind to assist him or her for a limited period of time, or in respect of a particular matter.

Accountable warrants

(4) For the purpose of providing the funds required under this section, the Lieutenant Governor in Council may direct that accountable warrants payable out of the Consolidated Revenue Fund be issued from time to time in favour of any officer or other person.

Accounts and audit

(5) The sums paid out under this section shall be duly accounted for by the production of accounts and vouchers.

Same

(6) It is not necessary that the accounts or vouchers mentioned in subsection (5) be furnished by any person in whose favour an accountable warrant was issued before the issue of a further accountable warrant to the same person, unless the Lieutenant Governor in Council directs otherwise.

Audit by Auditor General

(7) The Chief Election Officer’s accounts relating to transactions under this section shall be audited by the Auditor General.

Regulations

Regulations

19. (1) The Lieutenant Governor in Council may make regulations respecting and governing the referendum campaign and referendum campaign finances, including,

(a) prohibiting any person or entity from organizing a campaign to promote a particular result in the referendum or advertising for that purpose unless the person or entity is registered with the Chief Election Officer, subject to such exceptions as are specified in the regulations;

(b) governing applications to the Chief Election Officer for registration, including specifying criteria to be met for registration;

(c) requiring the Chief Election Officer to make information relating to registered referendum campaign organizers available to the public;

(d) governing contributions to referendum campaign organizers, including,

(i) prescribing what constitutes a contribution and, with respect to a contribution that is not in the form of money, prescribing how to determine its monetary value,

(ii) governing who may make contributions,

(iii) prescribing limits on contributions that may be made, accepted or solicited, or prescribing rules for calculating those limits, and

(iv) requiring the return or other disposition of contributions that contravene the regulations;

(e) governing loans and the provision of guarantees and collateral security to referendum campaign organizers;

(f) governing the use of funds by referendum campaign organizers, including prescribing spending limits;

(g) governing the return or other disposition of surplus funds held by referendum campaign organizers after referendum expenses have been paid;

(h) requiring registered referendum campaign organizers to appoint chief financial officers and auditors, governing the appointment of those persons and prescribing the powers and duties of those persons;

(i) prescribing financial and other record-keeping requirements for referendum campaign organizers;

(j) requiring registered referendum campaign organizers to provide financial and other reports to the Chief Election Officer;

(k) governing advertising to promote a particular result in the referendum, including,

(i) prescribing information to be included in advertisements,

(ii) prescribing duties of broadcasters and publishers who broadcast or publish advertisements on behalf of others,

(iii) imposing a blackout period during which no advertising is permitted;

(l) providing for any other matter that is necessary or desirable to protect the integrity of the referendum and the referendum campaign.

General or particular

(2) A regulation may be general or particular in its application.

Repeal, Commencement and Short Title

Repeal

20. (1) If a referendum is held in accordance with section 2,

(a) sections 2 to 11, 17, 18 and 19 and Tables 1 and 2 are repealed on the day the Legislature is dissolved for the first time after the 2007 general election; and

(b) the remaining provisions of this Act are repealed on October 10, 2013.

(2) If no referendum is held in accordance with section 2, this Act is repealed on the day the Legislature is dissolved for the first time after the 2007 general election.

Commencement

21. This Act comes into force on the day it receives Royal Assent.

Short title

22. The short title of this Act is the Electoral System Referendum Act, 2007.

 

Table 1
Special Rules relating to Scrutineers (Section 11)

Item

Provision of Election Act

Special rule for referendum

1.

 

Subsection 32 (1)

A registered referendum campaign organizer may appoint a person who is at least 16 years of age to be a scrutineer for an electoral district by filing a designation in writing with the returning officer at least five days before polling day.  The Election Act applies to scrutineers appointed by registered referendum campaign organizers in the same way as to scrutineers appointed by candidates.  A candidate’s scrutineer is not entitled to act as a registered referendum campaign organizer’s scrutineer, and vice versa.

2.

Subsection 32 (2)

A scrutineer appointed by a registered referendum campaign organizer is not entitled to challenge an elector’s right to vote.

3.

Subsection 42 (1)

Not more than one scrutineer for each registered referendum campaign organizer is permitted to remain in the polling place at any one time.

4.

Clauses 47 (3) (b) and (5) (d)

A scrutineer appointed by a registered referendum campaign organizer is not entitled to request a statutory declaration or make an objection.

5.

Subsection 57 (4)

A scrutineer appointed by a registered referendum campaign organizer is entitled to object to a referendum ballot, but not to an election ballot.  A candidate and a scrutineer appointed by a candidate are entitled to object to an election ballot but not to a referendum ballot.

6.

Subsection 58 (2)

A scrutineer appointed by a registered referendum campaign organizer may sign and seal an envelope containing referendum ballots, but not an envelope containing election ballots.  A candidate and a scrutineer appointed by a candidate may sign and seal an envelope containing election ballots, but not an envelope containing referendum ballots.

7.

Section 60

A copy of the certificate in respect of the referendum shall be provided to each scrutineer appointed by a registered referendum campaign organizer who is present; if none are present, the certificate shall be forwarded to the returning officer in the poll return envelope.

8.

Subsection 62 (2)

A scrutineer appointed by a registered referendum campaign organizer may seal or sign the sealed poll return envelope or the sealed official tabulation envelope of referendum ballots, but not the sealed official tabulation envelope of election ballots.

 

Table 2
Other Special Rules (Section 11)

Item

Provision of Election Act

Special rule for referendum

1.

Section 11

The notice of election shall include the referendum question, and shall also include a statement that a referendum on electoral reform is being held in conjunction with the 2007 general election.  The wording, size and appearance of the statement and its placement in the notice shall be as directed by the Chief Election Officer.  Both the question and the statement shall appear in both English and French.

2.

Section 17

A single application and appointment allows the person appointed as a proxy voter to vote, on behalf of the elector, in the referendum as well as in the 2007 general election.  An elector who appoints a proxy voter for the referendum must appoint the same proxy voter for the 2007 general election, and vice versa.

3.

Section 28

If only one candidate is nominated, the returning officer makes his or her return to the Chief Election Officer as described in section 81 with respect to the election of the candidate, but not with respect to the referendum.

4.

Section 29

The returning officer shall grant a poll for taking the votes in the referendum even if only one candidate is nominated.

5.

Clause 30 (2) (a)

If only one candidate remains after a candidate withdraws, the special rule in item 3 applies.

6.

Section 31

If a candidate’s death results in a new day being fixed for polling, polling in the referendum shall also take place on the new day in that electoral district.

7.

Subsection 42 (6)

The prohibition also applies in respect of information about how an elector answers the referendum question.

8.

Subsection 42 (7)

The restriction also applies in respect of a person’s answer to the referendum question.

9.

Subsection 47 (2)

The elector shall receive the referendum ballot and the election ballot from the deputy returning officer at the same time.

10.

Section 48

The elector shall mark and deposit both ballots.

11.

Subsection 49 (2)

A referendum campaign organizer is not entitled to receive the list of certificates.

12.

Section 52

An elector who delivers one of the ballots to the deputy returning officer as required but leaves without delivering the other one forfeits the right to vote in the referendum or in the 2007 general election, depending on which ballot is taken away.

13.

Section 53

One or both ballots may be declined.

14.

Section 54

One or both ballots may be replaced.

15.

Subsection 58 (1)

All accepted referendum ballots indicating the answer given to the referendum question and all unmarked, rejected, cancelled, declined and unissued referendum ballots shall be counted and sealed in separate envelopes, different from the ones used for the election ballots, by the deputy returning officer.  The stubs of any referendum ballots issued shall be included in the envelope with the unissued referendum ballots.

16.

Section 59

There shall be two statements of the poll, one for the referendum ballots and one for the election ballots.  One part of each shall be placed in or attached to the poll record.

17.

Section 60

The deputy returning officer shall complete a certificate in respect of the referendum in addition to the certificate in respect of the 2007 general election.

18.

Section 61

The deputy returning officer and poll clerk shall place the referendum ballot envelopes in the poll return envelope with the poll record, polling list, election ballot envelopes and other documents.

19.

Subsection 62 (2)

A candidate and a scrutineer appointed by a candidate are not entitled to seal or sign the sealed official tabulation envelope of referendum ballots.

20.

Section 66

The returning officer shall notify each registered referendum campaign organizer who appointed a scrutineer in the electoral district of any intended proceeding in respect of votes in the referendum and shall ascertain the total number of votes given for each referendum result.

21.

Section 67

The returning officer shall declare the total number of votes for each referendum result.  If the difference between the two numbers is less than 25, the returning officer shall apply for a recount under section 71.

22.

Section 69

Notice of an application relating to the referendum shall be given to each registered referendum campaign organizer who appointed a scrutineer in the electoral district, but not to the candidates.

23.

Section 71

An application for a recount relating to the referendum may be made only by the returning officer or by an elector.

24.

Subsection 77 (2)

The returning officer shall declare the total number of votes for each referendum result.  In the case of an equality of votes, there shall be no deciding vote.

25.

Subsection 78 (3)

On a recount relating to the referendum, if the judge makes no provision as to costs, the costs of the returning officer and election clerk shall be paid by the Province of Ontario at the rates prescribed under clause 112 (b) of the Election Act.

26.

Subsection 80 (9)

On an appeal from a judge’s decision in a recount relating to the referendum, if the judge makes no provision as to costs, the costs of the returning officer and election clerk shall be paid by the Province of Ontario at the rates prescribed under clause 112 (b) of the Election Act.

27.

Section 81

The returning officer shall prepare a separate return of referendum results in a form provided by the Chief Election Officer.  A copy of the return of referendum results shall be forwarded to each registered referendum campaign organizer who appointed a scrutineer in the electoral district.  The returning officer shall send the writ with the election return and return of referendum results, together with any reports under subsection 81 (2) of the Election Act, to the Chief Election Officer by registered mail.  If the election return is completed and it appears that there will be a delay of more than 24 hours before the return of referendum results is also completed, the writ and election return shall be sent immediately, and the return of referendum results shall be sent as soon as it is completed.  If the return of referendum results is completed and it appears that there will be a delay of more than 24 hours before the election return is also completed, the return of referendum results shall be sent immediately, and the writ and election return shall be sent as soon as it is completed.  In either case, any report shall be sent together with the return to which it relates.

28.

Section 82

An application may also be made if the delay, neglect or refusal relates to the referendum result; in that case, the notice of application shall be served on each registered referendum campaign organizer who appointed a scrutineer in the electoral district, but not on the candidates.

29.

Subsection 99 (3)

An action to determine the validity of the referendum vote in an electoral district may be commenced only by an elector in the electoral district or by the Chief Election Officer.

30.

Section 107

If, in an action to determine the validity of the referendum vote in an electoral district, the judgment of the court declares the referendum void in the electoral district and provides for the holding of a new referendum vote in the electoral district, a writ for the new referendum vote in the electoral district shall be issued and addressed to the returning officer in the electoral district.  The writ for the new referendum is not required, however, if a new election is also required in the electoral district.

31.

Section 113

No additional fees and expenses shall be paid to election officers or returning officers in respect of the referendum.