Court of Disputed Returns
Encyclopedia
The Court of Disputed Returns is a court
, or a tribunal
, or some other body that determines disputes about election
s in some common law
countries. Sometimes the court may be known by another name, such as the Court of Disputed Elections. In countries that derive their legal tradition from the United Kingdom
, the legal tradition is that Parliament
is the supreme law-making body in the country. That same tradition mandates that as Parliament is sovereign, it alone has authority and jurisdiction to determine who and how a person can be elected to Parliament. Implicit in that authority is the jurisdiction to determine whether a person has been validly elected. This is commonly known as a "disputed return" and which gives the court its name. The court is an attempt to eliminate the partisan nature of parliament and give the determination of electoral disputes to an independent and dispassionate neutral body. As parliament has the sole authority to determine these matters, parliament must create a special law to bring that body into existence to determine those disputes.
A court of disputed returns may be constituted in a number of ways. The first is by the creation of a special court to perform that function. This has occurred in the Northern Territory
of Australia where a special and separate court determines those disputes.
Another way is for an existing court to be given the role of the court of disputed returns. Commonly, the phrase "the x court shall be the court of disputed returns". In this case, a separate court is not created, but the existing court is made into and given the jurisdiction of the court of disputed returns. The High Court of Australia
, the Supreme Court of New South Wales
and the Supreme Court of Victoria
are each invested as courts of disputed returns in this manner.
A court may also be simply be the venue for the determination of disputed returns. In New South Wales
, the Land and Environment Court determines electoral disputes but is not a court of disputed returns.
In some jurisdictions, the parliament of that country retains the right to determine disputed returns concurrently with the court of disputed returns. What this means is that both the parliament and the court may both decide the issue.
Generally courts of disputed return have no rights of appeal, although this depends on the law which constitutes the court.
The first laws to regulate elections in England
were passed in the reign of Henry IV
. This was through the law numbered "7 Henry IV ch 15" and called “The manner of the Election of Knights of the Shire for a Parliament”, made in 1405. The law came about due to the confusion caused when letters were purportedly issued disqualifying lawyers from voting or being elected . In 1429, a law was passed allowing the common law courts to become involved in the determination of these disputes . In the 16th century, it was commonly regarded that the Court of Chancery
could determine electoral disputes, particularly as that court issued the various writs to the sheriff and compiled their returns on the election
During the reign of Elizabeth I
, the election for Norfolk was disputed in 1586. The Court of Chancery investigated and decided to issue writs for a new election. However, the House of Commons set up its own committee which upheld the election. In 1604, during the reign of James I
, a dispute arose as to the election of Sir Francis Goodwin for the seat of Buckinghamshire. The Court of Chancery investigated and determined that a new election should occur. However, the House of Commons established its own committee and found that Goodwin was validly elected. A compromise was made between the King and the House by holding a fresh election.
From the early 17th century, the resolution of disputed returns became accepted as being the prerogative of Parliament. The Court of Chancery then became the means of administering the election process, but Parliament became the arbiter of disputes .
. Issues were determined according to the numbers rather than the merits. Grenville’s Act of 1770
established a jury
system to reform the process but that process did not satisfactorily resolve the problem.
In 1868 Parliament handed its power to determine disputes to the common law courts. Orr and Williams describe this as a “hot potato” that the courts reluctantly took on. The power was given to two judges of the Queen's Bench. It was described as being “what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously maintained and guarded in complete independence of the Crown.”
is the Court of Disputed Returns for national elections in Australia. See section 354 of the Commonwealth Electoral Act 1918
(Cth) .
, the Supreme Court is known as the Court of Disputed Elections for the purposes of the Electoral Act 1992 (ACT) .
, the Supreme Court is the Court of Disputed Returns under the Electoral Act 1985 (SA) .
For local government elections, there is a Court of Disputed Returns constituted under which a District Court judge may be appointed .
For local government elections, the Magistrates Court is the Court of Disputed Returns under the Local Government Act 1995 (WA)..
.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
, or a tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
, or some other body that determines disputes about election
Election
An election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
s in some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries. Sometimes the court may be known by another name, such as the Court of Disputed Elections. In countries that derive their legal tradition from the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, the legal tradition is that Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
is the supreme law-making body in the country. That same tradition mandates that as Parliament is sovereign, it alone has authority and jurisdiction to determine who and how a person can be elected to Parliament. Implicit in that authority is the jurisdiction to determine whether a person has been validly elected. This is commonly known as a "disputed return" and which gives the court its name. The court is an attempt to eliminate the partisan nature of parliament and give the determination of electoral disputes to an independent and dispassionate neutral body. As parliament has the sole authority to determine these matters, parliament must create a special law to bring that body into existence to determine those disputes.
A court of disputed returns may be constituted in a number of ways. The first is by the creation of a special court to perform that function. This has occurred in the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
of Australia where a special and separate court determines those disputes.
Another way is for an existing court to be given the role of the court of disputed returns. Commonly, the phrase "the x court shall be the court of disputed returns". In this case, a separate court is not created, but the existing court is made into and given the jurisdiction of the court of disputed returns. The High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, the Supreme Court of New South Wales
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
and the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
are each invested as courts of disputed returns in this manner.
A court may also be simply be the venue for the determination of disputed returns. In New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, the Land and Environment Court determines electoral disputes but is not a court of disputed returns.
In some jurisdictions, the parliament of that country retains the right to determine disputed returns concurrently with the court of disputed returns. What this means is that both the parliament and the court may both decide the issue.
Generally courts of disputed return have no rights of appeal, although this depends on the law which constitutes the court.
History
Prior to 1405, there was no codified process for resolving electoral disputes. Those disputes were resolved through what is described by authors Graeme Orr and George Williams as “custom, force and administrative action”. This meant that there were no real rules in place to determine how these disputes were resolved. The manner of resolving a dispute in one county might be totally different from another county, or may result in a different outcome even if the same procedure was followed.The first laws to regulate elections in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
were passed in the reign of Henry IV
Henry IV of England
Henry IV was King of England and Lord of Ireland . He was the ninth King of England of the House of Plantagenet and also asserted his grandfather's claim to the title King of France. He was born at Bolingbroke Castle in Lincolnshire, hence his other name, Henry Bolingbroke...
. This was through the law numbered "7 Henry IV ch 15" and called “The manner of the Election of Knights of the Shire for a Parliament”, made in 1405. The law came about due to the confusion caused when letters were purportedly issued disqualifying lawyers from voting or being elected . In 1429, a law was passed allowing the common law courts to become involved in the determination of these disputes . In the 16th century, it was commonly regarded that the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
could determine electoral disputes, particularly as that court issued the various writs to the sheriff and compiled their returns on the election
During the reign of Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
, the election for Norfolk was disputed in 1586. The Court of Chancery investigated and decided to issue writs for a new election. However, the House of Commons set up its own committee which upheld the election. In 1604, during the reign of James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
, a dispute arose as to the election of Sir Francis Goodwin for the seat of Buckinghamshire. The Court of Chancery investigated and determined that a new election should occur. However, the House of Commons established its own committee and found that Goodwin was validly elected. A compromise was made between the King and the House by holding a fresh election.
From the early 17th century, the resolution of disputed returns became accepted as being the prerogative of Parliament. The Court of Chancery then became the means of administering the election process, but Parliament became the arbiter of disputes .
Parliamentary disputes
By the 18th century, the process of Parliament determining disputes became tainted. The holding of a seat in Parliament became very valuable. Voting in Parliament had consolidated into voting along party linesParty-line vote
A party-line vote in a deliberative assembly is a vote in which every member of a political party votes the same way...
. Issues were determined according to the numbers rather than the merits. Grenville’s Act of 1770
Parliamentary Elections Act 1770
The Parliamentary Elections Act 1770 is an Act of the Parliament of Great Britain . The Act transferred the power of trying election petitions from the House of Commons to the Judiciary. All contested elections were to be considered by a committee of thirteen members selected by ballot...
established a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
system to reform the process but that process did not satisfactorily resolve the problem.
In 1868 Parliament handed its power to determine disputes to the common law courts. Orr and Williams describe this as a “hot potato” that the courts reluctantly took on. The power was given to two judges of the Queen's Bench. It was described as being “what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously maintained and guarded in complete independence of the Crown.”
Australia
The High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
is the Court of Disputed Returns for national elections in Australia. See section 354 of the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 replaced the Commonwealth Franchise Act 1902 which defined who was allowed to vote in Australian federal elections. The Commonwealth Electoral Act comprehensively rewrote the Franchise Act and introduced instant-runoff voting, known in Australia as Preferential...
(Cth) .
Australian Capital Territory
In the Australian Capital TerritoryAustralian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
, the Supreme Court is known as the Court of Disputed Elections for the purposes of the Electoral Act 1992 (ACT) .
New South Wales
In New South Wales, Supreme Court shall be the Court of Disputed Returns under the Parliamentary Electorates and Elections Act 1912 for state elections. For elections of officers to Aboriginal Land Councils under the Aboriginal Land Rights Act 1983 (NSW), or a Rural Lands Board under the Rural Lands Protection Act 1998, the Land and Environment Court acts to consider disputed returns .Northern Territory
The Northern Territory has established the Court of Disputed Returns under the Electoral Act 2004 (NT) as a separate court to determine these disputes.Queensland
A dispute about an election may be made by petition to the Supreme Court sitting as the Court of Disputed Returns under the Electoral Act 1992 (Qld).South Australia
In South AustraliaSouth Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
, the Supreme Court is the Court of Disputed Returns under the Electoral Act 1985 (SA) .
For local government elections, there is a Court of Disputed Returns constituted under which a District Court judge may be appointed .
Victoria
The Supreme Court of Victoria is the Court of Disputed Returns under the Electoral Act 2002 (Vic).Western Australia
For state elections Section 157 of the Electoral Act (WA) provides that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns. The court is constituted by a judge of the Supreme Court of Western Australia sitting in open Court.For local government elections, the Magistrates Court is the Court of Disputed Returns under the Local Government Act 1995 (WA)..
Fiji
The High Court of Fiji is the Court of Disputed Returns for the Island of Fiji under section 73 of the Constitution (Amendment) Act 1997Constitution of Fiji
The 1997 Constitution of Fiji was the supreme law of Fiji from its adoption in 1997 until 2009 when President Josefa Iloilo purported to abrogate it. It was also suspended for a period following the 2000 coup d'état led by Commodore Frank Bainimarama....
.
New Zealand
The power to determine electoral disputes was transferred to the courts in 1880 by the Election Petitions Act 1880. Before this, disputes were determined by the Parliament. The change arose through two different election results on identical petitions .Papua New Guinea
Questions on electoral disputes are referred to the National Court of Papua New Guinea under the Organic Law on National and Local-level Government Elections 2003 (PNG) .Sources
- Orr, Graeme and Williams, George, “Electoral Challenges: Judicial Review of Parliamentary Elections in Australia” (2001) 23 Sydney Law. Review 53
- Walker, Kristen, “Disputed Returns and Parliamentary Qualifications: Is the High Court's Jurisdiction Constitutional” (1997) 20 U.N.S.W.L.J. 257
- Geiringer, Claudia. “Judging the Politicians: A Case for Judicial Determination of Disputes over the Membership of the House of Representatives” (2005) 3 NZJPIL 139.
- McGrath, Amy. Chapter Seven “One Vote, One Value : Electoral Fraud in Australia”. Proceedings of the Eighth Conference of The Samuel Griffith Society. http://www.samuelgriffith.org.au/papers/html/volume8/v8chap7.htm