Talk:Court of Disputed Returns (Australia)

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Petition questioning the result[edit]

An appropriately interested person, such as a losing candidate or a person entitled to vote in that constituency, may question the result (the "return of the writ") in a federal election by a petition to the High Court as Court of Disputed Returns. The Court can refer all or part of a matter to the Federal Court of Australia, but will itself determine questions of validity.[16] A petition must normally be filed within 40 days of the result.

Our article currently has the above but I wonder if it should be reworded. As far as I can tell from the primary source [1] "such as" is unnecessary here. Only a candidate (well I don't think it has to be a losing candidate) or a person entitled to vote (as well as the later mentioned AEC) can file a petition. Maybe just remove the appropriately interested person and such as part? Also I don't see why 'normally' is used here. As far as I can tell there's no option but with 40 days except that if there were multiple elections on the same day it will be 40 days from the last one, and in the case of appointments 40 days of that appiintment. The current wording would seem to suggest that there are some cases whereit can be after 40 days but that doesn't seem to be an option under the legislation. Nil Einne (talk) 07:16, 18 November 2017 (UTC)

The wrinkle is the appointment of people to the Senate - there is no return of the writ, nor election at which a person is entitled to vote - which adds wordage but as far as I'm aware there has only been 1 challenge to an appointment (Vardon v O'Loghlin) & so its a complication that doesn't add much value. That said it is probably enough to start the para "A losing candidate ..." - in the unlikely event someone challenges an appointment the article could add the complication. Similarly changing the last sentence to "A petition must be filed within 40 days" would seem to be enough. Most of this material was drafted by Wikiain (talk · contribs) so I would be interested in his views. -- Find bruce (talk) 21:39, 18 November 2017 (UTC)
Thanks to you both. The restriction to an "appropriately interested person" doesn't seem to be in the Act. If I wrote this, I may have assumed that the ordinary rules on standing apply, in which case I think an explanation would be appropriate. And then a losing candidate would be the most likely: e.g. in Sykes v Cleary Sykes, Kardamitsis and Delacretaz. But an argument against this implication could be that, if Parliament had wanted to restrict standing it could and would have said so. Further problems are that the rules on standing are uncertain and that the HCA is becoming looser about them. So, unless someone can finds a source, I'd change to "Any person" without explanation. You're right about "return of the writ" and the 40 days stuff depends on that. Maybe change to:

Any person may question the result in a federal election, or the choice of a replacement under Constitution s 15, by a petition to the High Court as Court of Disputed Returns. A petition must be filed within 40 days. The Court can refer all or part of a matter to the Federal Court of Australia, but will itself determine questions of validity.[16]

Wikiain (talk) 01:35, 19 November 2017 (UTC)
Any person is a bit broad - a few people have attempted to challenge the entire general election & as the paragraph does on to explain, the Court has said since at least Muldowney v AEC [1993] HCA 32 at [12] per Brennan ACJ "No elector is qualified to vote at a general election; each elector is admitted to vote only for the election of a member of the House of Representatives for the Division for which he or she is enrolled". Does "A candidate or voter may question ..." cover it ? -- Find bruce (talk) 03:57, 19 November 2017 (UTC)
What you quote from Muldowney is about qualification to vote, not qualification to challenge. But reading Muldowney has pointed me to where I should have seen the answer: s 355(c). So how about:

Any person who had been a candidate in a federal election or had been qualified to vote in it may challenge the result (and similarly for a Senate replacement under Constitution s 15) by a petition to the High Court as Court of Disputed Returns. The petition must be filed within 40 days. The Court can refer all or part of a matter to the Federal Court of Australia, but will itself determine questions of validity.[16]

Wikiain (talk) 22:59, 19 November 2017 (UTC)

────────────────────────────────────────────────────────────────────────────────────────────────────I think we are close enough to make changes to the article. I made a couple of pedantic changes to wikiain's text, but if you feel they can be better expressed, feel free to edit. Find bruce (talk) 01:56, 20 November 2017 (UTC)