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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 4 - Elections for the Senate

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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.[26] The Court cannot void a whole general election.[27]

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.[28] 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.[29]

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.[30] For cases on the qualifications of senators, see Chapter 6, Senators, under that heading.

26. Rudolphy v Lightfoot (1999) 197 CLR 500.
27. Abbotto v Australian Electoral Commission (1997) 144 ALR 352.
28. Commonwealth Electoral Act, s. 364.
29. Commonwealth Electoral Act, s. 362.
30. Commonwealth Electoral Act, s. 376.