Candidates Handbook: Recounts and disputed returns

Updated: 24 May 2016

The Act

  • Part XVIII, 'The scrutiny'
  • Part XXII, 'Court of Disputed Returns'

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.

Recounts

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.

House of Representatives recount

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.

Evaluating a request for a House of Representatives recount

  • 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 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 which does not plead any valid and specific grounds must be refused. A request for a recount needs to identify specific ballot papers and associated significant counting process errors or irregularities that could change the result of an election within a division.
  • Wherever possible, the grounds pleaded by the candidate requesting the recount will be used to narrow down to as small a category as possible the ballot papers that need to be re-examined.
  • Where the margin of votes at the completion of the distribution of preferences for a House of Representative division is less than 100, a recount will be undertaken as a matter of course.
  • 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.

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.

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.

Evaluating a request for a Senate 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.

Court of Disputed Returns

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:

  1. to adjourn
  2. to compel the attendance of witnesses and the production of documents
  3. 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
  4. to examine witnesses on oath
  5. to declare that any person who was returned as elected was not duly elected
  6. to declare any candidate duly elected who was not returned as elected
  7. to declare any election absolutely void
  8. to dismiss or uphold the petition in whole or part
  9. to award costs
  10. to punish any contempt of its authority by fine or imprisonment.

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.

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:

  1. set out the facts relied on to invalidate the election,
  2. 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,
  3. contain a prayer asking for the relief the petitioner claims to be entitled to,
  4. be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election,
  5. be attested by two witnesses whose occupations and addresses are stated,
  6. be filed in the Registry of the High Court within 40 days after:
    1. the return of the writ,
    2. if the election day for the election in dispute is also the election day
    3. for another election or other elections–the return of the writs for the election in dispute and that other election or those other elections is returned last, or
    4. 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.

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.

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.

  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:
    1. 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
    2. on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption,
    3. 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.