7 RECOUNTS AND DISPUTED RETURNS

Part XVIII, ‘The scrutiny’
Part XXII, ‘Court of Disputed Returns’

As a scrutineer, you may observe any recount of ballot papers. This chapter describes 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.

Candidates may request a recount of ballot papers in an election, although the electoral official is not automatically obliged to accept the request. The official has the power to direct a recount at their discretion without waiting for a request.

Recounts

A recount may be undertaken, approved or directed at any time before the result of an election is declared. see Fresh scrutiny or recheckIt should not be confused with the routine recheck (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 or a Senate election, no matter how close the margins in the scrutiny had been. Given the checks and balances in both scrutiny systems, significant sorting errors are highly unlikely to go undetected.

Senate recount

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.

House of Representatives recount

If requesting a recount, House of Representatives candidates must write to the DRO giving their reasons for the request.

DROs may initiate a recount, or be directed by the Electoral Commissioner or the AEO 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 were the original scrutiny, and may reverse any decision in the scrutiny to admit or reject a ballot paper.

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 admitted by the AEO, the DRO will determine to whom the first preference has been allocated, if this is unclear.

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.

Evaluating a request for a recount

The general guidelines observed in evaluating requests for a recount are as follows:

A recount may take place where there are valid and specific grounds for supposing that it could change the result of the election in the division or state or territory or where there are specific grounds for determining the need for a recount of specific ballot papers (such as in response to specific allegations or incidents).
A request for a recount that does not plead any valid and specific grounds should be refused.
Wherever possible, the grounds pleaded by the candidate requesting the recount should be used to narrow down to as small a category as possible the ballot papers that need to be re-examined.
There is no minimum number of ballot papers under which a recount will automatically occur.
Only one recount of any set of ballot papers will occur.
Requests for recounts will only be considered, and actioned, in the period after the completion of all scrutinies and before the declaration of the poll in the division (for House of Representatives ballot papers) or state or territory (for Senate ballot papers).

Court of Disputed Returns

The Act, Part XXII

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 a member or Senator.

The Act, s. 360(1)

The Court of Disputed Returns sits as an open court. Its powers include the following:

to adjourn;
to compel the attendance of witnesses and the production of documents;
to grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot papers) used at or in connection with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents;
to examine witnesses on oath;
to declare that any person who was returned as elected was not duly elected;
to declare any candidate duly elected who was not returned as elected;
to declare any election absolutely void;
to dismiss or uphold the petition in whole or part;
to award costs;
to punish any contempt of its authority by fine or imprisonment.

The High Court has held that petitioners, other than candidates and the AEC itself, must be qualified to vote by being enrolled on the date on which the election was held. Petitioners cannot challenge the election at large but only those elections for which they were qualified to vote.

Anyone contemplating a challenge to an election result should consult their own legal advisers.

What must a petition contain?

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:

(a) set out the facts relied on to invalidate the election;

(aa) . 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 at any time after the filing of the petition relieve the petitioner from complying with this];

(b) contain a prayer asking 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 qualified to vote at the election;

(d) be attested by 2 witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the High Court within 40 days after:

(i) . the return of the writ .; or .

(iii) . if the choice . of a person to hold the place of a Senator under section 15 of the Constitution is in dispute—the notification of that choice of appointment.

The Act, s. 356

When filing a petition, the petitioner must deposit $500 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, since the AEC is usually a party to any petition before the Court of Disputed Returns.

Voiding an election for illegal practices

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:

s. 362(1)	If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.
(2)	No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.
(3)	The Court of Disputed Returns shall not declare that any person returned as elected 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 the knowledge or authority of the candidate; 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.
(4)	The Court of Disputed Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground that someone has contravened the Broadcasting Services Act 1992 or the Radiocommunications Act 1992.

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.

For more information on recounts see ‘Guidelines for the Consideration of Requests for Recounts’ at www.aec.gov.au.

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