Free v Kelly and Australian Electoral Commission

This matter concerned an election petition filed in the Court of Disputed Returns regarding the election of a member to the House of Representatives. The petitioner, Mr Free, challenged the validity of the election of Mr Kelly, and the Australian Electoral Commission was also a party to the proceedings. The central question before Brennan CJ was whether to reserve a particular question arising from the petition for determination by the Full Court.

The primary legal issue before the Court was the interpretation and application of sections 360 and 364 of the *Commonwealth Electoral Act 1918*. Specifically, the Court was required to consider whether the circumstances presented in the petition warranted the reservation of a question of law to the Full Court, as permitted by the Act, or whether the matter could be adequately dealt with by a single judge.

Brennan CJ reasoned that the power to reserve a question for the Full Court was a discretionary one, to be exercised where the question was substantial and likely to determine the outcome of the petition. His Honour considered the nature of the question raised by the petitioner and concluded that it did not possess the requisite degree of complexity or significance to necessitate referral to the Full Court at that stage. The principles governing the exercise of this discretion, focusing on efficiency and the proper administration of justice, were applied.

Consequently, Brennan CJ determined that the question would not be reserved for the Full Court, and the petition would proceed before him.