First instance body dealing with electoral disputes
Australia
172 Rejection of nominations and requests
(1) Subject to subsection (2), a nomination shall be rejected bythe officer to whom it is made if, and only if, the provisions of section 166,167, 170 or 171 have not been complied with in relation to the nomination.
(2) No nomination shall be rejected by reason of any formal defector error in the nomination if the officer to whom the nomination is made issatisfied that the provisions of sections 166, 167, 170 and 171 have beensubstantially complied with.
(3) A request under this Part is not ineffective because of anyformal defect or error in the request if the requirements of this Act have beensubstantially complied with.
The following is taken from ElectoralReform Green Paper- Strengthening Australia’s Democracy by the Departmentof the Prime Minister and Cabinet, Government of Australia, Part 2 (KeyElements of the Electoral Process), Chapter 13 (Dispute Resolution), pp195-196.
Commonwealth arrangements
13.1 Disputesmay arise over the results of a federal election, or with regard to a number of
proceduralelements of the electoral process administered by the Australian ElectoralCommission (AEC).
Disputing election results
13.2 A uniquejudicial body,1069 known as the Court of Disputed Returns, is the solerecipient of legal
challenges tothe validity of federal election results. The jurisdiction of the Court ofDisputed
Returns isvested in the High Court.1071 The High Court is empowered to try the matteritself, or
refer thematter, in whole or in part, to the Federal Court of Australia for trial.
13.3 A petitionchallenging the validity of an election may be lodged by a candidate who
contested therelevant election, a person qualified to vote at the election, or the AEC.
The petitionmust:
• outline thefacts relied on to challenge the election;
• set out thespecific outcome being requested by the petitioner;
• be signed byan eligible person and attested by two witnesses; and
• be filed inthe Registry of the High Court within 40 days of the return of the writ.
At the time offiling the petition, the petitioner must lodge a deposit of $500 with theRegistry
of the HighCourt as security for costs.
13.5 The Courtof Disputed Returns is given broad powers to consider a petition.1080 Subjectto
the other requirementsin the Electoral Act, the Court may consider the merits of the case,
without beingrestricted by legal technicalities.
The ElectoralAct requires the Court to make
its decision ona petition as quickly asis reasonable in the circumstances. Furthermore, decisions of the Courtof Disputed Returns are final and are not subject to review.
13.6Historically, petitions to the Court of Disputed Returns have been relativelyrare.
Examples of disputes (p 196)
• For the Houseof Representatives, only two of 35 petitions that challenged divisional results
between 1958and 2008 have been successful.1084 These two petitions alleged that the
successfulcandidates were not qualified under section 44 of the Australian Constitution (specifically,alleging that successful candidates held an office of profit under the crown).
The Courtdeclared that the respondents concerned were not duly elected and that the relevantelections were absolutely void. New elections were held in both cases, and the successfulcandidates were the same as those elected in the previously disputed election.
• Twosuccessful Senate candidates have also been held to be not qualified undersection 44, as they bore an allegiance to a foreign power. The Court declaredthat the respondents concerned were not duly elected.1086 In neither case wasthe whole Senate election declared invalid. The Court found that whilst voters’preferences for the ineligible candidates
were invalid,their other preferences were valid and could be allocated to determine a successfulcandidate.
