Gageler
J
2.
6
(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."
Section 360, to which s 379 refers, is located within Div 1. Section 360
confers a range of powers on the Court of Disputed Returns. They include "[t]o
declare that any person who was returned as elected was not duly elected", "[t]o
declare any candidate duly elected who was not returned as elected", and "[t]o
declare any election absolutely void".
Section 380 provides:
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"After the hearing and determination of any reference under this Part the
Chief Executive and Principal Registrar of the High Court shall forthwith
forward to the Clerk of the House by which the question has been referred
a copy of the order or declaration of the Court of Disputed Returns."
8
Section 381 makes certain other provisions of Div 1 applicable to
proceedings on a reference to the Court of Disputed Returns under Div 2. Those
provisions include s 368, which provides that "[a]ll decisions of the Court shall
be final and conclusive and without appeal, and shall not be questioned in any
way", and s 374, which provides:
"Effect shall be given to any decision of the Court as follows:
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(i)
If any person returned is declared not to have been duly elected, the
person shall cease to be a Senator or Member of the House of
Representatives;
(ii)
If any person not returned is declared to have been duly elected, the
person may take his or her seat accordingly;
(iii)
If any election is declared absolutely void a new election shall be
held."
The Full Court of the High Court, sitting as the Court of Disputed Returns,
held in In re Wood1 that it is open to the Senate under Div 2 of Pt XXII to refer to
1
(1988) 167 CLR 145 at 162; [1988] HCA 22.