The Court of Disputed Returns is a special court that exists to rule on any challenges to the outcome of a federal election.

The High Court of Australia is the Court of Disputed Returns. The High Court can refer matters to the Federal Court of Australia, which gives the Federal Court the ability to act as the Court of Disputed Returns as well.

Broadly speaking, the Court is able to consider cases in two main areas. Whether the results of a federal election are correct (the result in a single House of Representatives electorate, or the result of a Senate election for a state or territory) and whether an elected Member of the House of Representatives or Senator is eligible to sit in the Parliament under Section 44 of the Constitution.

An application to the Court can be made by a voter, a candidate or the AEC. The application is known as a petition.

A petition must be made within 40 days of the return of writs for an election.

A petition to the Court of Disputed Returns is a serious matter, and petitions are not considered lightly. To be considered by the Court, a petition needs to argue specific reasons for a challenge. It is not enough to simply dislike the result of an election.

Candidates and voters

A candidate, or any person who was qualified to vote in the election, may challenge the result of an election (including if they think the elected member was not eligible) within 40 days of the return of writs.

A voter cannot challenge the validity of an election they weren’t entitled to vote in. A voter can only challenge the election in the division of the House of Representatives or, for the Senate, the state or territory, for which they were enrolled in on the date on which the election was held. A candidate can challenge the results of the election in which they are a candidate.

The AEC

The AEC can also file a petition challenging the result of an election within 40 days of the return of writs.

It is AEC policy to petition the Court to investigate any election result in which the number of suspected multiple votes is equal to or greater than the margin of victory. As the level of multiple voting in Australia is very low, this has never been required.

The AEC is required to petition the Court if an election cannot be decided because the final margin is a tie. This has never happened.

The Parliament

The House of Representatives and the Senate have the power to ask the Court to consider a question about the qualification of a Member or Senator at any time.

If the Court accepts a petition, it holds a hearing. The petitioner and any other parties, who are usually represented by lawyers, make verbal arguments and write written arguments (called submissions) to the Court about the matter. Witnesses can be called, and the Court has the power to require entities to produce documents as evidence. The Electoral Act requires the Court to make a decision on a petition quickly, but consideration of complex legal questions often takes time.

At the conclusion of a case about an election result, the Court can take the following actions:

1. The Court can leave the election result unchanged.
2. The Court can declare that a candidate declared by the AEC as the winner of an election was not elected;
3. The Court can declare any candidate who was not declared by the AEC as the winner of an election to be elected;
4. The Court can declare an election “void”.

If a House of Representatives election is declared void, this usually means a by-election for a single electorate will be required. If an entire State or Territory’s Senate result is declared void, this would usually mean a Senate election for that State or Territory is required.

If the Court finds that a Member of the House of Representatives is not eligible to sit or was not qualified to be elected, it would likely call for a by-election in that Member’s electorate.

However, if the Court finds that a Senator is not eligible to sit or was not qualified to be elected, it may choose to order a special count of votes cast in the election, in which votes cast for the disqualified candidate are disregarded and their preferences allocated to the voter’s next preferred candidate on the ballot paper. This type of special count last occurred in 2018.

Yes.
Any candidate declared by the AEC as the winner of an election is considered to be validly elected until and unless the Court of Disputed Returns rules otherwise. The elected Member or Senator may be sworn in to the Parliament and participate in Parliamentary debate in the same way as any other Member or Senator.

In most cases, yes.
Petitions to the Court are often drafted in such a way that the candidate or voter seeking to challenge an election result (the applicant), names another candidate as the respondent in the case, with the AEC named as a second respondent. Even if the AEC is not named as a respondent, the Electoral Act allows the Electoral Commissioner by leave of the Court to be represented in any case in which the validity of any election or return is disputed.

Usually, nothing.
In most cases, the Court will be asked to look at the circumstances and election result in a single House of Representatives electorate, or a Senate election for a single state or territory.

When the Court makes a decision about how electoral laws should be interpreted this can lead to changes in the way that the AEC is required to apply electoral laws at future federal elections.