The Court of Disputed Returns is a special jurisdiction of the High Court of Australia. The High Court, sitting as the Court of Disputed Returns, hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. Challenges regarding the validity of state elections are heard by the supreme court of that state, sitting as that state's court of disputed returns.
Constitutional background A Court of Disputed Returns is a court, tribunal or some other body that determines disputes about elections in some common law countries, including the former Australian colonies. This jurisdiction of the courts evolved in England (and later in the United Kingdom), as a part of the struggle between the Crown and Parliament, and was largely settled in 1868 when the House of Commons gave the courts of common law jurisdiction to determine disputed returns. The Australian colonies enacted legislation based on the Parliamentary Elections Act 1868 (UK). At the constitutional conventions that led to federation of the Australian colonies in 1901, it was decided that election disputes would be determined by the courts, but the manner in which this was to be achieved was left to the new parliament. (2001) 23 Sydney Law Review 53.
The Constitution of Australia, in sections 73–76, provides the High Court of Australia with original and appellate jurisdiction, and also empowers the Commonwealth parliament to provide additional original jurisdiction. Constitution s 47 more specifically empowers the Parliament to provide that questions of members' qualifications, of vacancies in either house and of disputed elections shall be determined otherwise than by the house in which they have arisen Disputed elections.which Constitution s 49 states to be the position inherited from the Parliament of the United Kingdom. In 1902 the Parliament provided that the High Court would be the federal Court of Disputed Returns. Section 193. This jurisdiction is now provided in Part XXII of the Commonwealth Electoral Act 1918. Part XXIICourt of Disputed Returns.
There has been debate as to whether the determination of disputed returns is consistent with the constitutional role of the High Court in exercising judicial power. (1997) 25 Federal Law Review 317. (1997) 20 University of NSW Law Journal 257.
The power of the Court of Disputed Returns was brought to the attention of the public following the 2013 federal election in which the Australian Electoral Commission lost 1,370 ballot papers in Western Australia. Sitting as the Court of Disputed Returns, the High Court declared the Senate election in Western Australia as void,. and ordered a special election.
In 2017 there was a series of parliamentary references to the Court of Disputed Returns, to determine the eligibility of a number of members of parliament found or alleged to be dual citizens, contrary to Constitution s 44(i).
Procedure
The Commonwealth Electoral Act 1918, which governs federal elections, provides the High Court with a jurisdiction as the federal Court of Disputed Returns.
Petition by individual or AEC
A candidate, or any person who had been qualified to vote in the election, may challenge the result,Similarly for a Senate replacement under Section 15 Constitution: . by a petition to the High Court as the Court of Disputed Returns. The petition must be filed within 40 days. Requisites of petition The Court can refer all or part of a matter to the Federal Court of Australia, but will itself determine questions of validity. The Court of Disputed Returns. A petition can also be filed by the Australian Electoral Commission. Petition by Electoral Commission The requirement that a person be entitled to vote at the specific election means that the Court of Disputed Returns does not have the jurisdiction to declare that the entirety of a general election was void. Any other person who was entitled to vote at the election may be heard in relation to the petition. 31.01 Appearances.
The admissible grounds for a petition are whatever "the Court in its discretion thinks just and sufficient", but are specified to include "illegal practices ... committed in connexion with the election". "Illegal practices" are defined as actual or attempted "bribery and undue influence" by a successful candidate, who may then be criminally prosecuted; but, unless there is actual or attempted "bribery or corruption" by the candidate or with their knowledge and approval, the Court has to be "satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void". Voiding election for illegal practices etc. Electoral officers' administrative errors will not matter unless they have affected the result. Immaterial errors not to vitiate election. See also ss 365A and 366. A complaint about being prevented from voting will require proof of the person's eligibility to vote and of their attempt to do so.
The Court is empowered to compel production of documents and attendance of witnesses, and to examine witnesses on oath. Powers of Court However, the Court "must make its decision on a petition as quickly as is reasonable in the circumstances", Court must make its decision quickly it is not bound by strict rules of evidence, Real justice to be observed and all of its decisions "shall be final and conclusive and without appeal, and shall not be questioned in any way" Decisions to be final (thus there is no recourse to the High Court in its other capacities or to the Parliament).
A decision of the Court of Disputed Returns may be made by a single judge, but an issue of constitutional interpretation is likely to be determined by the Full Court. The Court may dismiss or uphold a petition in whole or in part and, if upholding it, will declare:
that a person who was returned as elected was not duly elected, upon which that person will cease to be a member of the Parliament; or that a candidate is duly elected who was not returned as elected, upon which that person may take their seat; or that an election is absolutely void, in which case a new election is to be held. Effect of decision
Costs will be as in ordinary proceedings in the High Court. The Court may order all or any costs to be paid by the Commonwealth or by "any unsuccessful party to the petition". Costs. The petitioner must lodge a returnable deposit of (only) $500 as security: Deposit as security for costs.
Parliamentary reference
In addition, there may be a reference by resolution of either house of the parliament on "[a]ny question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament". Reference of question as to qualification or vacancy The reference (commonly termed a referral) is communicated to the Court by, as appropriate, the Speaker of the House of Representatives or the President of the Senate. There is no time limit, but in other respects the procedure is the same as with a petition, although the Court may also allow or request other persons to be heard. The Court is empowered to declare: (a) that any person was not qualified to be a Senator or a Member of the House of Representatives; (b) that any person was not capable of being chosen or of sitting as a Senator or a Member of the House of Representatives; and (c) that there is a vacancy in the Senate or in the House of Representatives. Powers of court In practice, the references request the Court to determine how a vacancy so arising should be filled. The full Court may order a recount and appoint one member of the Court to supervise the process and confirm the result.
Unlike an election petition there is no general right to be heard, a person must obtain leave of the Court. Parties to the reference. Thus in relation to the eligibility questions referred to the Court in 2017, in addition to the member of parliament and the Attorney General, only Tony Windsor, the unsuccessful candidate for New England, was given leave to appear. All other applications for leave were refused..
Early cases (1901–1949)
The following cases were determined by the Court of Disputed Returns. It does not include numerous cases such as Sarina v O'Connor (1946) where the petition was withdrawn or dismissed by consent.
1903 Election The first case heard by the Court of Disputed Returns was Chanter v Blackwood, in which John Chanter challenged the election of Robert Blackwood. The Court had to consider the validity of votes, and whether they had been properly accepted or rejected, and the extent to which disputed votes were proved to have affected the result of the election, by reference to section 200 of the Commonwealth Electoral Act 1902. The High Court emphasised the extent to which errors or illegal practice may have affected the outcome of the election, with the effect that only close contests give rise to petitions. Further the costs involved mean that serious challenges to the election results are run only by the major parties.
Maloney v McEacharn was a related case, in which William Maloney challenged the election of Sir Malcolm McEacharn. The main issue concerned the validity of postal votes that had not been signed in the presence of a Returning Officer or other specified person. The 300 invalid votes affected the outcome where McEachern had a majority of only 77 votes..
Hirsch v Phillips was decided two days after Chanter v Blackwood, where Max Hirsch challenged the election of Pharez Phillips. The challenge was based on the fact that a polling booth at Ni Ni,A former village ~13 km from Nhill: was not open on the polling day. At the time electors were allocated to a polling booth and were expected to vote there, although they could vote at another polling booth if they made a declaration that they were the person enrolled to vote, that they had not voted elsewhere and promised not to vote at any other polling place. The polling booth at Ni Ni was opened one week later however voters registered at other polling places were not permitted to vote. Griffith CJ delivered the decision of the Court that a person who was absent on the original polling day was and remained entitled to vote at another polling place and there were no words to take that right away from them.. Having established the points of principle, the petition was heard by Griffiths CJ. Phillips’ majority was 167 and so Hirsch needed to bring evidence that at least 167 voters had been prevented from voting at Ni Ni to prove that their exclusion may have affected the result. Griffiths CJ dismissed the petition by consent.
Cameron v Fysh concerned the challenge by Norman Cameron against the election of Sir Philip Fysh with a majority of 31 votes. While Cameron alleged illegal practices, Griffith CJ held that there was no evidence that Fysh was responsible for any illegal practices, nor that undue influence affected enough votes to have affected the result of the election..
1906 Election