What is the process for challenging the results of an election?

In Plain English:

If you want to challenge the results of a referendum, election, or a statement about the voting results, here's what you need to do:

  1. Who Can Challenge:

    • For a referendum, the Commonwealth, a State, the Australian Capital Territory, or the Northern Territory can dispute the results (Referendum (Machinery Provisions) Act 1984).
    • For a Torres Strait Regional Authority (TSRA) election, a candidate or someone who was eligible to vote in that election can challenge the results (Aboriginal and Torres Strait Islander Act 2005). The Australian Electoral Commission can also dispute a TSRA election.

  2. How to Challenge:

  3. What the Petition Must Include:

    • The specific facts that you believe invalidate the referendum, election, or statement of voting results.
    • These facts must be detailed enough to clearly identify the issues.
    • A request for the specific outcome you want (the relief you're seeking).
    • For referendums, the petition must be signed by the Attorney-General of the Commonwealth, a State, the Australian Capital Territory, or the Northern Territory, depending on who is filing the petition (Referendum (Machinery Provisions) Act 1984). For TSRA elections, if the AEC is filing the petition, it must be signed by the Electoral Commissioner (Aboriginal and Torres Strait Islander Act 2005).
    • Attestation by two witnesses, including their occupations and addresses, is required for TSRA election petitions (Aboriginal and Torres Strait Islander Act 2005).

  4. Time Limit:

  5. Security Deposit:

  6. High Court/Federal Court Powers:

Detailed Explanation:

The process for disputing the validity of an election or referendum in Australia is governed by specific legislative provisions, depending on the type of election or referendum in question.

1. Referendums (under the Referendum (Machinery Provisions) Act 1984)

  • Who May Dispute: Section 100 of the Referendum (Machinery Provisions) Act 1984 stipulates that the Commonwealth, any State, the Australian Capital Territory, or the Northern Territory can dispute the validity of a referendum or any return or statement showing the voting at a referendum.
  • Method of Disputing: Section 100 requires a petition addressed to the High Court.
  • Requisites of Petition: According to section 101, the petition must:
    • Set out the facts relied on to invalidate the referendum, return, or statement.
    • Set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief. The Court may provide relief from strict compliance with this requirement under subsections 101(2) and (3).
    • Contain a request asking for the relief to which the petitioner claims to be entitled.
    • Be signed by the Attorney-General of the Commonwealth, a State, the Australian Capital Territory, or the Northern Territory, as appropriate.
    • Be filed in the Registry of the High Court within 40 days after the publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum (s101(1)(d)).
  • Jurisdiction and Powers of the High Court: Section 103 grants the High Court jurisdiction over matters arising under Part VIII (Disputed returns) of the Referendum (Machinery Provisions) Act 1984. Following a hearing, the High Court may:
    • Declare the referendum to be void.
    • Uphold the petition in whole or in part.
    • Dismiss the petition.
    • The High Court may declare a referendum void on the ground that contraventions of the Referendum (Machinery Provisions) Act 1984 or the regulations were engaged in in connection with the referendum (s103(4)).

2. Torres Strait Regional Authority (TSRA) Elections (under the Aboriginal and Torres Strait Islander Act 2005)

  • Who May Dispute: Clause 2(1) of Schedule 4 of the Aboriginal and Torres Strait Islander Act 2005 states that the validity of any election, or of the declaration of a poll for an election, may be disputed by petition. Clause 3(c) specifies that the petition must be signed by a candidate at the election in dispute or by a person who was, or who claimed to be, qualified to vote at that election. Clause 5(1) states that the Electoral Commission is entitled to file an election petition disputing an election.
  • Method of Disputing: Clause 2(1) of Schedule 4 requires a petition addressed to the Federal Court.
  • Requisites of Petition: According to clause 3 and 5 of Schedule 4, the petition must:
    • Set out the facts relied on to invalidate the election or declaration (cl 3(a)).
    • Contain a request for the relief the petitioner claims to be entitled to (cl 3(b)).
    • Be signed by a candidate at the election in dispute or by a person who was, or who claimed to be, qualified to vote at that election (cl 3(c)). If the Electoral Commission files the petition, it must be signed by the Electoral Commissioner for and on behalf of the Commission (cl 5(2)).
    • Be attested by 2 witnesses whose occupations and addresses are stated (cl 3(d)).
  • Time Limit: Any petition disputing an election must be filed in a Registry of the Court within 40 days after the poll is declared in relation to the election (cl 3A).
  • Security for Costs: At the time of filing an election petition, the petitioner must deposit with the Chief Executive Officer and Principal Registrar, a Registrar, a District Registrar or a Deputy District Registrar of the Court the sum of $100 as security for costs (cl 4).
  • Jurisdiction and Powers of the Court: Clause 2(2) of Schedule 4 grants the Federal Court jurisdiction to try election petitions. Clause 2(3) states that the jurisdiction of the Court to try election petitions may be exercised by a single judge of the Court.

It's important to note that failure to comply with the procedural requirements outlined in the relevant legislation may result in the petition being dismissed.