Court of Disputed Returns (NSW)
Encyclopedia
The Supreme Court of New South Wales
sits as the Court of Disputed Returns when considering a petition concerning the validity of any election or return under the Parliamentary Electorates and Elections Act 1912 (NSW). The Court is concerned solely with elections held for the New South Wales Parliament.
The High Court of Australia
sits as a Court of Disputed Returns
for federal elections. Prior to the enactment of the Electoral and Referendum Act (No 1) 2001 (Cth) (which commenced on 16 July 2001), the High Court could refer federal electoral disputes to the Supreme Court of a state.
The Court may also consider questions respecting the qualifications of a member of the Legislative Assembly or the Legislative Council, or respecting a vacancy in either, but only if that question was referred by either assembly or council. The Court may declare that any person was not qualified to be a member of parliament, declare that any person was not capable of sitting as a member of parliament, or to declare that there is a vacancy.
In considering the petition, the court may inquire whether or not the petition is duly signed, and so far as rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct, but the court shall not inquire into the correctness of any roll.
exercised the jurisdiction. The Grenville Act 1770 (UK) provided for the determination of disputes by a Select Committee of the House of Commons. Later, a committee of 11 members were chosen by ballot to report their decision to the House.
In essence, the parliament had the jurisdiction to determine whether a person had been properly elected, rather than the Courts.
In 1868, the Parliamentary Elections Act 1868 (UK) was passed conferring jurisdiction on two judges of the Queen's Bench. The transfer of jurisdiction from Parliament to the courts was hastened by a concern with the partisanship of Parliament in ruling on electoral disputes.
At the time of federation
in Australia, Western Australia and Tasmania had transferred jurisdiction over disputed returns to their Supreme Courts. South Australia and Queensland had created hybrid tribunals. Victoria and New South Wales retained the exclusive jurisdiction to determine disputed returns for themselves.
New South Wales gave the Supreme Court exclusive jurisdiction over disputed returns with the introduction of section 32 of the Parliamentary Electorates and Elections (Amendment) Act 1928
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
sits as the Court of Disputed Returns when considering a petition concerning the validity of any election or return under the Parliamentary Electorates and Elections Act 1912 (NSW). The Court is concerned solely with elections held for the New South Wales Parliament.
The High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
sits as a Court of Disputed Returns
Court of Disputed Returns
The Court of Disputed Returns is a court, or a tribunal, or some other body that determines disputes about elections in some common law countries. Sometimes the court may be known by another name, such as the Court of Disputed Elections...
for federal elections. Prior to the enactment of the Electoral and Referendum Act (No 1) 2001 (Cth) (which commenced on 16 July 2001), the High Court could refer federal electoral disputes to the Supreme Court of a state.
The Court may also consider questions respecting the qualifications of a member of the Legislative Assembly or the Legislative Council, or respecting a vacancy in either, but only if that question was referred by either assembly or council. The Court may declare that any person was not qualified to be a member of parliament, declare that any person was not capable of sitting as a member of parliament, or to declare that there is a vacancy.
The Petition
The petition may be filed by the candidate or an elector entitled to vote at that election.In considering the petition, the court may inquire whether or not the petition is duly signed, and so far as rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct, but the court shall not inquire into the correctness of any roll.
History
The Court's jurisdiction over disputed electoral returns can be traced to the practices of the United Kingdom Parliament. Until 1604, disputed returns were decided by the King in Chancery. From 1604 to 1868, the British House of CommonsBritish House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
exercised the jurisdiction. The Grenville Act 1770 (UK) provided for the determination of disputes by a Select Committee of the House of Commons. Later, a committee of 11 members were chosen by ballot to report their decision to the House.
In essence, the parliament had the jurisdiction to determine whether a person had been properly elected, rather than the Courts.
In 1868, the Parliamentary Elections Act 1868 (UK) was passed conferring jurisdiction on two judges of the Queen's Bench. The transfer of jurisdiction from Parliament to the courts was hastened by a concern with the partisanship of Parliament in ruling on electoral disputes.
At the time of federation
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
in Australia, Western Australia and Tasmania had transferred jurisdiction over disputed returns to their Supreme Courts. South Australia and Queensland had created hybrid tribunals. Victoria and New South Wales retained the exclusive jurisdiction to determine disputed returns for themselves.
New South Wales gave the Supreme Court exclusive jurisdiction over disputed returns with the introduction of section 32 of the Parliamentary Electorates and Elections (Amendment) Act 1928