Commonwealth Consolidated Acts Commonwealth Consolidated ActsSection 140
(1) In this Schedule:
"bribery" or corruption means a contravention of subsection 198(1) or (2).
"Court" means the Federal Court of Australia.
"election" means a TSRA election.
"election petition" means a petition addressed to the Court under subclause 2(1).
"Electoral Commission" means the Australian Electoral Commission.
"illegal practice" means a contravention of this Act or the TSRA election rules.
"reference" means a reference of a question to the Court under clause 17.
"returned" means declared to be elected at a poll for an election.
"undue influence" means a contravention of subsection 198(3) of this Act or section 83.4 of the Criminal Code .
(2) For the purposes of this Schedule, a person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the contravention of a provision of this Act, the Crimes Act 1914 or the TSRA election rules shall be deemed to have contravened that provision.
2 Method of disputing elections
(1) The validity of any election, or of the declaration of a poll for an election, may be disputed by petition addressed to the Court and not otherwise.
(2) The Court has jurisdiction to try election petitions.
(3) The jurisdiction of the Court to try election petitions may be exercised by a single judge of the Court.
3 Requisites of election petitions
Subject to clause 5, every election petition shall:
(a) set out the facts relied on to invalidate the election or declaration;
(b) contain a request for the relief the petitioner claims to be entitled to;
(c) 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;
(d) be attested by 2 witnesses whose occupations and addresses are stated.
3A Deadline for filing a petition
(1) Any petition disputing an election held as part of a general election must be filed in a Registry of the Court within 40 days after the last day on which a poll is declared in relation to the general election.
(2) Any petition disputing any other election must be filed in a Registry of the Court within 40 days after the poll is declared in relation to the election.
(3) In this clause:
general election means:
(c) a TSRA election for all wards.
4 Deposit as security for costs
At the time of filing an election petition the petitioner shall 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.
5 Petition by Electoral Commission
(1) The Electoral Commission is entitled to file an election petition disputing an election.
(2) Paragraphs 3(c) and (d) do not apply in relation to an election petition filed by the Electoral Commission disputing an election but such a petition shall be signed by the Electoral Commissioner for and on behalf of the Commission.
6 No proceedings unless requisites complied with
No proceedings shall be had on an election petition unless the requirements of clauses 3, 3A, 4 and 5 are complied with.
7 Right of Electoral Commission to be represented
(1) The Electoral Commission shall be entitled by leave of the Court to enter an appearance in any proceedings in which the validity of any election or declaration of a poll is disputed.
(2) Where the Electoral Commission enters an appearance in such proceedings the Electoral Commission:
(a) is entitled to be represented and heard in the proceedings; and
(b) shall be taken to be a party respondent to the proceedings.
8 Right of Minister to be represented
(1) If the Minister thinks that it is in the public interest to do so, the Minister is entitled to enter an appearance in any proceedings in which the validity of any election or declaration of a poll is disputed.
(2) When the Minister enters an appearance in such proceedings, the Minister:
(a) is entitled to be represented and heard in the proceedings; and
(b) shall be taken to be a party respondent to the proceedings.
9 Election petitions to be tried in open court
When trying an election petition, the Court shall sit as an open court.
(1) The powers of the Court in trying an election petition, include, but are not limited to, the following powers:
(a) to adjourn the proceedings;
(b) to compel the attendance of witnesses and the production of documents;
(c) to grant to any party to the petition leave to inspect, in the presence of a person who was an authorised electoral officer for the purposes of Division 4 or 7 of Part 3 in relation to the election concerned, the documents (except ballot papers) used at or in connection with the election and to take, in the presence of the prescribed officer, extracts from those documents;
(ca) to grant to any party to the petition leave to inspect, in the presence of a person who was an authorised electoral officer for the purposes of Division 5 of Part 3A in relation to the election concerned, the documents (except ballot papers) used at or in connection with the election and to take, in the presence of the prescribed officer, extracts from those documents;
(d) to examine witnesses on oath;
(e) to declare that any person who was returned was not duly elected;
(f) to declare any candidate duly elected who was not returned;
(g) to declare the election absolutely void;
(h) to dismiss or uphold the petition in whole or in part;
(j) to make any order, or give any direction, that the Court thinks is necessary or convenient for the purpose of giving effect to any declaration or other decision of the Court in the proceedings;
(k) to award costs;
(m) to punish any contempt of its authority by fine or imprisonment.
(2) The Court may exercise all or any or its powers under this clause on such grounds as the Court in its discretion thinks just and sufficient.
(3) Without limiting the powers conferred by this clause, it is hereby declared that the power of the Court to declare that any person who was returned was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
(4) The power of the Court under paragraph ( 1)(k) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.
The Court shall inquire whether or not an election 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 Commonwealth Electoral Roll to be correct, but the Court shall not inquire into the correctness of the Commonwealth Electoral Roll.
12 Voiding election for illegal practices
(1) If the Court finds that a candidate at an election has committed or has attempted to commit bribery or undue influence, the candidate's election, if he or she is a successful candidate, shall be declared void.
(2) No finding by the Court shall bar or prejudice any prosecution for any illegal practice.
(3) The Court shall not declare that any person returned was not duly elected, or declare any election void:
(a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority; or
(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
13 Court to report cases of illegal practices
When the Court finds that any person has committed an illegal practice, the Chief Executive Officer and Principal Registrar of the Court shall forthwith report the finding to the Minister.
14 Immaterial errors not to vitiate election
(1) No election shall be avoided on account of any delay in the declaration of nominations, the polling, or the declaration of the poll, or on account of the absence or error of or omission by any officer which did not affect the result of the election.
(2) Where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the Court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election.
15 Evidence that person not permitted to vote
On the trial of any election petition the Court shall not admit the evidence of any witness that he or she was not permitted to vote in the election during the hours of polling on a polling day unless the witness satisfies the Court:
(a) that he or she claimed to vote, in the election, pursuant to that provision of this Act or the TSRA election rules under which he or she was entitled or might be permitted to vote; and
(b) that he or she complied with the requirements of this Act and the TSRA election rules, relative to voting by electors in so far as he or she was permitted so to do.
16 Deposit applicable for costs
If costs are awarded to any party against a petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner.
Part 3 -- Qualifications and vacancies
17 Reference of question as to qualification or vacancy
(1) Any question respecting:
(c) the qualifications of a member of the TSRA; or
(d) a vacancy in the TSRA;
may be referred to the Court by the Minister.
(2) The Court has jurisdiction to hear and determine the question.
(3) The jurisdiction of the Court to hear and determine questions may be exercised by a single Judge of the Court.
Where the Minister refers a question to the Court under this Part, the Minister shall also give to the Court a statement of the question upon which the determination of the Court is desired, and any documents relating to the question that are in the Minister's possession.
(1) The Court may:
(a) allow any person who, in the Court's opinion, is interested in the determination of a question to be heard on the hearing of the reference; or
(b) direct notice of a reference to be served on any person.
(2) A person who is:
(a) allowed to be heard under paragraph ( 1)(a); or
(b) directed to be served under paragraph ( 1)(b);
is a party to the reference.
20 References to be heard in open court
When hearing a reference, the Court shall sit as an open court.
The powers of the Court in hearing a reference include, but are not limited to, the following powers:
(a) the powers conferred on the Court under clause 10, so far as they are applicable;
(d) the power to declare that any person was not qualified to be a member of the TSRA;
(e) the power to declare that there is a vacancy in the TSRA.
22 Order etc. to be sent to Minister and TSRA
After the hearing and determination of a reference, the Chief Executive Officer and Principal Registrar of the Court shall send a copy of the declaration or other decision of the Court to:
(a) the Minister; and
(d) if the reference relates to the TSRA--the TSRA.
23 Real justice to be observed
The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.
(1) No party to an election petition or a reference shall, except by consent of all parties, or by leave of the Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel or one solicitor appear on behalf of any party.
The Court may award costs against an unsuccessful party to a petition or reference.
27 Effect of declarations etc.
(1) A declaration made by the Court in proceedings under this Schedule has effect according to its terms.
(4) The validity of anything done by the TSRA is not affected by the fact that a person has since ceased to be a member of the TSRA because of a declaration of the Court under this Schedule.
28 Power to make Rules of Court
The judges of the Court or a majority of them may make Rules of Court not inconsistent with this Act and the TSRA election rules for carrying this Schedule into effect and in particular for regulating the practice and procedure of the Court and the forms to be used.
Note: Section 59 of the
Federal Court of Australia Act 1976 provides that certain provisions of the
Legislation Act 2003 apply, with modification, to rules of court made by the
Court. Section 59A of the Federal Court of Australia Act 1976 provides
that regulations may be made modifying or adapting certain provisions of the
Legislation Act 2003 in their application to the Court.