"The validity of any election or return may be disputed

by petition addressed to the Court of Disputed Returns and

a petition issued pursuant to s.353. Division 1, Pt XXII of the Act is headed "Disputed Elections and Returns".

3. Under s.360(1) the powers of the Court of Disputed Returns are expressed to include the following:

"(i) To adjourn:

(ii) To compel the attendance of witnesses and the

production of documents:

(iii) 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 connexion with any election and to take, in

the presence of the prescribed officer, extracts

from those rolls and documents:

(iv) To examine witnesses on oath:

(v) To declare that any person who was returned as

elected was not duly elected:

(vi) To declare any candidate duly elected who was not

returned as elected:

(vii) To declare any election absolutely void:

(viii) To dismiss or uphold the petition in whole or in part:

(ix) To award costs:

(x) To punish any contempt of its authority by fine or

imprisonment."

4. Division 2, Pt XXII of the Act, which is headed "Qualifications and Vacancies", commences with s.376 which provides:

"Any question respecting the qualifications of a Senator

or of a Member of the House of Representatives or respecting

a vacancy in either House of the Parliament may be referred

by resolution to the Court of Disputed Returns by the House

in which the question arises and the Court of Disputed

Returns shall thereupon have jurisdiction to hear and

determine the question."

Section 379 provides:

"On the hearing of any reference under this Part the

Court of Disputed Returns shall sit as an open Court and

shall have the powers conferred by section 360 so far as

they are applicable, and in addition thereto shall have

power:

(a) to declare that any person was not qualified

to be a Senator or a Member of the House of

Representatives;

(b) to declare that any person was not capable of being

chosen or of sitting as a Senator or a Member of

the House of Representatives; and

(c) to declare that there is a vacancy in the Senate or

in the House of Representatives."

5. By way of preliminary objection the respondent Cleary objects that this Court, sitting as the Court of Disputed Returns, has no jurisdiction to try the petition. He refers to the fact that it is Div.2 and not Div.1 which speaks of "(a)ny question respecting the qualifications of a Senator or of a Member of the House of Representatives". Division 1, he observes, refers only to "(t)he validity of any election or return". That being so, he submits that the proper construction of Div.1 is to confine the jurisdiction which it confers to a consideration of the machinery of a disputed election, including any illegal practices adopted in relation to it. Such a construction would, he argues, be in accordance with the traditional role performed by the Houses of Parliament whereby they determined for themselves exclusively the qualifications of their respective members. In that regard he referred to s.47 of the Constitution which provides:

"Until Parliament otherwise provides, any question

respecting the qualification of a senator or of a member

of the House of Representatives, or respecting a vacancy

in either House of the Parliament, and any question of a

disputed election to either House, shall be determined by

the House in which the question arises."

6. But, of course, the Parliament has otherwise provided by the Commonwealth Electoral Act. Division 1, Pt XXII of this Act has its origins in the Commonwealth Electoral Act 1902 (Cth). Section 192 of that Act provided, as does s.353(1) of the current Act, that "(t)he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise". Section 192 was contained in Pt XVI of the Commonwealth Electoral Act 1902, the provisions of which Part (following amendments introduced largely by the Commonwealth Electoral Acts of 1905, 1922, 1940 and 1965, the Commonwealth Electoral Amendment Act 1980 (Cth), the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) and the Electoral and Referendum Amendment Acts of 1989 and 1991) have since come to constitute Div.1, Pt XXII of the current Act.

7. Division 2, Pt XXII of the current Commonwealth Electoral Act has its origins in ss.206AA to 206F of the Disputed Elections and Qualifications Act 1907 (Cth). Apart from being renumbered, these sections have remained in substantially the same form since 1907. It was this Act of 1907 which divided that Part of the Commonwealth Electoral Act 1902 entitled "Court of Disputed Returns" (then Pt XVI and now Pt XXII) into Divs 1 and 2 headed respectively "Disputed Elections and Returns" and "Qualifications and Vacancies".

8. Sections 353(1) and 376, which define the jurisdiction of the Court of Disputed Returns under Divs 1 and 2 respectively, clearly have regard to s.47 of the Constitution and the three categories of questions to which it makes reference, namely, questions respecting qualifications, vacancies and disputed elections. Questions respecting disputed elections fall within the jurisdiction conferred by s.353(1) and questions concerning qualifications and vacancies fall within the jurisdiction conferred by s.376 upon a reference by the relevant House of Parliament. But there is nothing in s.47 to suggest that the three categories of questions referred to are mutually exclusive. Obviously a question of qualifications may arise in a context other than that of a disputed election. Conversely, a disputed election may involve a question of the qualification of a person to be chosen as a senator or member. Similarly, while in some circumstances the question of a vacancy may arise in connection with a disputed election, in other circumstances it may arise independently of such an election. For my part, I am unable to see that the assignment of one of the categories to be found in s.47 of the Constitution to Div.1 and the other two to Div.2 assists the respondent's argument.

9. In In re Wood (1) [1988] HCA 22; (1988) 167 CLR 145 this Court considered an argument which was essentially the reverse of that put by the respondent in this case. It was argued that the Court had no jurisdiction to determine questions referred to it under Div.2 to the extent that they concerned the validity of an election or return. The Court rejected that argument saying (2)ibid., at p 160.:

"The categories of questions mentioned in s.47 of the

Constitution (and reproduced in ss.353 and 376 of the Act) are

not mutually exclusive".

10. In that case, the question referred to the Court was whether there was a vacancy in the Senate for a place for which a particular senator had been returned. In considering the argument put to it and in determining that it had jurisdiction, the Court accepted that the election at which the senator had been returned might have been disputed before the Court upon a petition under Div.1 had a petition been filed within the prescribed time. Even if that were assumed only for the purposes of argument (and I think that the case goes further than that) the assumption was, in my view, clearly correct.

11. This conclusion is borne out by history. In England, the House of Commons claimed and exercised the exclusive right of deciding the validity of all elections to the House. However, The Parliamentary Elections Act 1868 (U.K.) (31 and 32 Vict. c.125) provided that a petition complaining of "an undue return or undue election of a member to serve in Parliament" could be presented to the Court of Common Pleas (3)s.5. in order to "determine whether the member whose return or election is complained of, or any and what other person was duly returned or elected, or whether the election was void" (4)s.11(13).. Notwithstanding that the House of Commons retained jurisdiction to consider questions concerning the qualifications of its own members, successive editions of Rogers on Elections (5)See, e.g., 20th ed. (1928), vol.II, pp.165-166 express the view that the grounds on which a petition might be based included the disqualification of a candidate for being elected. The jurisdiction conferred on this Court under Div.1, Pt XXII of the Commonwealth Electoral Act is the equivalent of that conferred by The Parliamentary Elections Act and the jurisdiction retained by the House of Commons to consider questions concerning the qualifications of its own members corresponds with that which might be exercised by this Court upon a referral under Div.2, Pt XXII of the Commonwealth Act.

12. For these reasons I have concluded that the Court has jurisdiction in this matter.