You, as a candidate, can benefit from a good understanding of the circumstances and procedures leading to a recount of votes in an election, as well as the circumstances under which the High Court would sit as a Court of Disputed Returns.
As a candidate you can request a recount of ballot papers in an election, however, the electoral official is not automatically obliged to accept your request. The official also has the power to direct a recount at their discretion without waiting for a request.
The Act, ss.278 and 279
A recount may be undertaken, approved or directed at any time before the result of an election is declared. It should not be confused with the routine re-check (fresh scrutiny) of the House of Representatives votes counted on election night.
In the absence of specifically alleged errors it is unlikely that a recount would be required at either a House of Representatives election or Senate election. However, in the case of a House of Representatives division, if the margin of votes at the completion of the distribution of preferences is less than 100, a recount is conducted as a matter of course.
Given the checks and balances in scrutiny systems, significant sorting errors are highly unlikely to go undetected.
If requesting a recount, House of Representatives candidates must write to the relevant DRO giving their reasons for the request.
DROs may initiate a recount, or be directed by the Electoral Commissioner at any time before the declaration of a result of a House of Representatives election to recount all or some of the ballot papers.
The DRO must notify each candidate of the time and place of any recount.
The DRO conducting a recount has the same powers as if the recount was the original scrutiny. A DRO may reverse any decision in the scrutiny to admit or reject a ballot paper.
During a recount the DRO may, and at the request of a scrutineer must, reserve any ballot paper for the decision of the AEO. The AEO must decide whether any ballot paper reserved for their decision is to be admitted or rejected. If a ballot paper is considered as being admitted by the AEO, the DRO will determine to whom the first preference has been allocated.
If an election result is challenged, the High Court of Australia, sitting as the Court of Disputed Returns, may consider any ballot paper reserved for the decision of the AEO, but may only order a further recount if it is satisfied that a recount is justified.
The guidelines for evaluating a request for a House of Representatives Recount are detailed in the AEC’s Recount Policy for House of Representatives elections.
If requesting a recount, Senate candidates must write to the AEO for the state or territory giving their reasons for the request.
If the AEO for the state or territory refuses a request from a candidate to direct a recount of any Senate ballot papers, the candidate may appeal in writing to the Electoral Commissioner. The Electoral Commissioner is empowered to either direct or refuse a recount.
The guidelines for evaluating a request for a Senate Recount are detailed in the AEC's Recount Policy for Senate elections.
For more information on formality, see Ballot paper formality guidelines.
The Act, Part XXII
Anyone contemplating a challenge to an election result should consult their own legal advisers. The validity of the election of any member of parliament may only be disputed by a petition to the Court of Disputed Returns within 40 days of the return of the writ. The Common Informers (Parliamentary Disqualifications) Act 1975 provides penalties for ineligible members of parliament who sit as members or senators. Such an action has to be argued in the High Court under section 5 of that Act.
The Act, s.360(1)
The Court of Disputed Returns sits as an open court. Its powers include the following:
A petitioner cannot challenge, in the Court of Disputed Returns, the validity of a general election as a whole. The petitioner may only challenge the election in the division of the House of Representatives or, for the Senate, the State or Territory, for which he or she was enrolled on the date on which the election was held.
Petitions must set out the facts relied on to invalidate the election and, if they allege illegal practices, must show how these could have affected the election result.
The Act, s.355
A petition must:
The Act, s.356
When filing a petition, the petitioner must deposit security for costs.
Note: there may be other filing fees and charges under High Court rules.
The AEC is not able to assist petitioners in preparing petitions. This is because there would be a conflict of interest, as the AEC is often a respondent to any petition before the Court of Disputed Returns.
The Act, s.362
An election may be declared void if the court finds illegal practices, within the meaning of that term under the Act, took place.
Section 362 of the Act, which details when an election is declared void due to illegal practices, is reproduced below.
The Act, s.386
Any candidate found guilty of bribery or undue influence or interference with political liberty may not be elected to or sit as a member of either House of Parliament for two years from the date of conviction or finding by the Court.