Chapter 4 - Elections
for the Senate
Disputed returns and qualifications
Under the Commonwealth Electoral Act
the validity of any election or return may be disputed only by petition
addressed to the Court of Disputed Returns. The High Court of Australia is the
Court of Disputed Returns and it has jurisdiction either to try the petition or
to refer it for trial to the Federal Court.
A petition must:
- set out the facts relied on to invalidate the election;
- sufficiently identify the specific matters on which the petition relies;
- detail the relief to which the petitioner claims to be entitled;
- be signed;
- be attested by two witnesses whose occupations and addresses are stated;
- be filed in the Registry of the High Court within 40 days after the return of the
writ or the notification of the appointment of a person to fill a vacancy;
- be accompanied by the sum of $500 as security for costs.
The Court has wide powers which include power to declare that any
person who was returned was not duly elected; to declare any candidate duly
elected who was not returned as elected; and to declare any election absolutely
void. The requirement for a petition to be lodged within the 40 day limit
cannot be set aside: Rudolphy v Lightfoot 1999 167 ALR 105. The
Court cannot void a whole general election: Abbotto v Commonwealth Electoral
Commission 1997 144 ALR 352.
The Court must sit as an open Court and be guided by the substantial
merits and good conscience of each case without regard to legal forms or
technicalities, or whether the evidence before it is in accordance with the law
of evidence or not (Commonwealth
Electoral Act, s. 364). Questions of fact may be remitted to the Federal
Court. All decisions of the Court are final and conclusive and without appeal
and cannot be questioned in any way.
If the Court of Disputed Returns finds that a candidate has committed
or has attempted to commit bribery or undue influence, and that candidate has
been elected, then the election will be declared void (Commonwealth Electoral
Act, s. 362).
Any question arising in the Senate respecting the qualification of a
senator or respecting a vacancy may be referred by resolution to the Court of
Disputed Returns (Commonwealth
Electoral Act, s. 376). For cases on the qualifications of senators, see
Chapter 6, Senators, under that heading.
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