Re Senator Robert Wood

The High Court of Australia, sitting as the Court of Disputed Returns, considered questions referred to it pursuant to section 377 of the *Commonwealth Electoral Act 1918* (Cth) in relation to Senator Robert Wood. The State of New South Wales sought and was granted leave to be heard as a party in the proceedings.

The central legal issues before the Court concerned the nature and effect of a declaration of a vacancy in the Senate. Specifically, the Court was required to determine whether the validity of Senator Wood's return or election could be challenged in light of section 353(1) of the *Commonwealth Electoral Act*, and how the Court's powers under section 376 to hear and determine questions respecting qualifications or vacancies should be exercised. The Court also considered the relationship between the constitutional provisions regarding qualifications and vacancies, as outlined in section 47 of the Constitution, and the divisions within the *Commonwealth Electoral Act* dealing with disputed elections and returns, and qualifications and vacancies.

The Solicitor-General for New South Wales submitted that the Court's power to declare a vacancy under section 379 of the Act should be exercised such that any vacancy declared would operate from the time of the declaration, not retrospectively. This submission was based on the argument that section 353(1) precludes the Court from disputing the validity of a return or election, and that the Court's jurisdiction under section 376 should be read in conjunction with section 47 of the Constitution and the relevant divisions of the Act to avoid such disputes. The Solicitor-General contended that while the initial question posed to the Court was framed as a vacancy, the underlying issue related to qualifications, and that a declaration of vacancy would result in a casual vacancy to be filled in accordance with section 15 of the Constitution.