Disputed elections and returns

At the commencement of the Commonwealth, any question concerning the qualification of a Member or Senator, a vacancy in either House, or a disputed election to either House was to be determined by the House in which the question arose.[165] Under this original procedure three petitions were presented to the House of Representatives disputing the election of Members.[166] The petitions were referred to the Committee of Elections and Qualifications.[167] In each case the committee’s report, adopted by the House, did not support a change in the election result.[168] In 1902 legislation was enacted which provided for the validity of any election or return to be disputed by petition addressed to the High Court sitting as the Court of Disputed Returns.[169] In 1907 legislation was enacted providing that the relevant House could refer to the Court of Disputed Returns any question respecting the qualifications of a Member or a Senator to sit in Parliament or respecting a vacancy in either House.[170]

Under current legislation the validity of any election or return may be disputed only by a petition addressed to the Court of Disputed Returns.[171] Such a petition must contain a form of words (called a prayer) setting out the relief the petitioner is seeking, set out the facts relied on to invalidate the election or return, be signed by either a candidate or person qualified to vote at the election and be attested by two witnesses. The petition must be filed within 40 days of the return of the writ, with a deposit of $500, in the Registry of the High Court.[172] The Electoral Commissioner may also file a petition disputing an election, on behalf of the Commission, and is obliged to do so if the election cannot be decided because of a tie.[173]

The petition is heard by the High Court sitting as the Court of Disputed Returns or is referred by the High Court for trial by the Federal Court of Australia, which in such cases has all the powers and functions of the Court of Disputed Returns. In either court these powers may be exercised by a single justice or judge.[174] When the court finds that any person has committed an ‘illegal practice’, this fact is reported to the responsible Minister.[175]

The Chief Executive and Principal Registrar of the High Court sends a copy of the petition to the Clerk of the House of Representatives immediately it has been filed, and after the hearing sends the Clerk a copy of the order of the court. A copy of the order is also sent to the issuer of the writ (that is, the Governor-General or the Speaker).[176] The Clerk presents the petition and order of the court to the House at the earliest opportunity either separately or together.[177] Related documents have also been tabled—for example, an order of the High Court remitting a petition to the Federal Court.[178] The decision of the court is final and no appeals are permitted.[179] A person whose election has been challenged continues to serve pending the outcome of the hearing.

Any person returned who is declared by the court not to have been duly elected ceases to be a Member of the House of Representatives—in fact the decision means that the person has not been a Member. Any person not returned who is declared to have been duly elected following consideration of an election petition may take his or her seat in the House of Representatives. If any election of any Member is declared absolutely void, then a new election is held.[180]

Since the establishment of the Court of Disputed Returns there have been 50 cases of the court being petitioned in connection with a seat in the House of Representatives, including 13 of similar intent lodged after the 1980 general election.[181] The court has ruled the election absolutely void in six cases and the Speaker (or Acting Speaker) has issued writs for new elections to be held.[182] Following the 1993 general election petitions were lodged alleging irregularities in the conduct of a general election, against the Electoral Commission, and challenging the election of all Members elected, rather than challenging the election of specified Members. The cases were dismissed.[183]

In 1920 a Member (Mr McGrath) was elected at a second election after the first election had been declared void. The House agreed to a motion that compensation be paid to him because he had been compelled to contest two elections as a result of official errors and had thus been involved in much unnecessary but unavoidable expenditure.[184]

The House of Representatives may, by resolution, refer any question concerning the qualifications of a Member or a vacancy in the House to the Court of Disputed Returns.[185] The Speaker sends to the court a statement of the question together with any documents possessed by the House relating to the question.[186] The court has the power to declare any person not qualified or not capable of being chosen or of sitting as a Member of the House of Representatives, and to declare a vacancy in the House of Representatives. The Chief Executive and Principal Registrar of the High Court sends a copy of the order or declaration of the Court of Disputed Returns to the Clerk of the House, as soon as practicable after the question has been determined.[187] There has been no instance of the House of Representatives referring a question concerning the qualifications of a Member or a vacancy in the House to the Court of Disputed Returns[188] although this has happened in the Senate.[189]

For further coverage of Members’ qualifications and disqualifications and challenges to membership of the House see Chapter on ‘Members’.