1
GAGELER J. Subject to the Constitution, including the constraints of Ch III of
the Constitution, s 51(xxxvi) read with s 47 of the Constitution confers power on
the Commonwealth Parliament to make laws with respect to any question
respecting the qualification of a Senator or Member of the House of
Representatives and any question of a disputed election to either House. The
Parliament has exercised that power in the enactment of Pt XXII of the
Commonwealth Electoral Act 1918 (Cth), under which the High Court,
designated by s 354(1) as the Court of Disputed Returns, is conferred with
original jurisdiction under s 76(i) of the Constitution. Within Pt XXII, Div 1 is
concerned with questions of disputed elections and Div 2 is concerned with
questions respecting the qualifications of a Senator or Member of the House of
Representatives.
2
The jurisdiction conferred on the Court of Disputed Returns by Div 2 of
Pt XXII of the Commonwealth Electoral Act is as stated in s 376. That section
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."
3
Section 377 provides:
"When any question is referred to the Court of Disputed Returns under
this Part, the President if the question arises in the Senate, or the Speaker
if the question arises in the House of Representatives, shall transmit to the
Court of Disputed Returns a statement of the question upon which the
determination of the Court is desired, together with any proceedings,
papers, reports, or documents relating to the question in the possession of
the House in which the question arises."
4
5
Under s 378 the Court of Disputed Returns may allow any person who in
its opinion is interested in the determination of any question referred to it to be
heard on the hearing of the reference and any person allowed to be heard or so
directed to be served is deemed to be a party to the reference.
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: