Disputed Elections and Qualifications Act 1907

Legislation au C1907A00010 Not in force Act

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DISPUTED ELECTIONS AND QUALIFICATIONS.

 

No. 10 of 1907.

An Act to amend the Law relating to Parliamentary Elections and to provide for the Settlement of Questions relating to the Qualifications of Members of the Parliament and to Vacancies in either House of the Parliament.

[Assented to 22nd November, 1907.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title.

1. This Act may be cited as the Disputed Elections and Qualifications Act 1907, and shall be incorporated and read as one with the Commonwealth Electoral Acts 1902–1905 (in this Act called the Principal Act).

Pending petition.

2.—(1.) Any petition disputing the validity of any choice by the Houses of Parliament of a State of a person to hold the place of a Senator under section fifteen of the Constitution or involving any question respecting the qualification of a Senator or respecting a vacancy in the Senate, which is now in or pending before the Senate, or in respect of which the Senate has resolved that the question involved is proper to be referred to the High Court, is by virtue of this Act and without any order of the Court of Disputed Returns removed into the Court of Disputed Returns.

(2.) Any petition to which this section applies shall be transmitted by the Clerk of the Parliaments to the Principal Registry of the High Court, and thereupon the power of the Senate to deal with the petition shall wholly cease and determine and all the requirements of any Act or Rules relating to the procedure for bringing a petition before the Court of Disputed Returns shall be deemed to have been complied with and the Court of Disputed Returns shall have jurisdiction and shall proceed to hear and determine the petition and the questions raised thereby; but such jurisdiction shall be exercised by a Full Court of at least three Judges.


(3.) The procedure in the Court of Disputed Returns in relation to any petition to which this section applies shall subject to this section be as directed by that Court or a Justice thereof.

(4.) On the hearing of any petition to which this section applies the Court of Disputed Returns shall have the powers conferred by section one hundred and ninety-seven of the Principal Act so far as they are applicable, and in addition thereto, shall have power to make any declaration or order which the nature of the case may require.

(5.) The provisions of sections one hundred and ninety-nine and two hundred and one of the Principal Act shall apply to the hearing and determination of any petition to which this section applies.

(6.) After the hearing and determination of the petition the Principal Registrar or District Registrar of the High Court shall forthwith forward to the Clerk of the Parliaments a copy of the declaration or order of the Court of Disputed Returns.

(7.) On the hearing of the petition the facts stated and the documents referred to therein shall be taken to be proved or admitted, unless as to any particular fact or document the Court shall otherwise direct.

Amendment of sec. 2 of Principal Act.

3. Section two of the Principal Act is amended by adding after the words “Part XVI. Court of Disputed Returns” the words—

Division 1.—Disputed Elections and Returns.

Division 2.—Qualifications and Vacancies.

Amendment of Part XVI. of Principal Act.

4. Part XVI. of the Principal Act is amended by adding before section one hundred and ninety-two the words—

Division 1.—Disputed Elections and Returns.

Choice under sec. 15 of Constitution to be an Election.

5. Section one hundred and ninety-two of the Principal Act is amended by adding the following paragraph at the end thereof—

“The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or the appointment of a person to hold the place of a Senator by the Governor of a State under section fifteen of the Constitution shall be deemed to be an election within the meaning of this section.”

Amendment of Part XVI. of Principal Act.

6. Part XVI. of the Principal Act is amended by adding at the end thereof the following heading and sections—

Division 2.—Qualifications and Vacancies.

Reference of question as to qualification or vacancy.

206aa. Any question respecting the qualification 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.


President or Speaker to state case.

206bb. When any question is referred to the Court of Disputed Returns under this part of this Act, 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.

Parties to the reference.

206cc. The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this part of this Act to he heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to he heard or so directed to be served shall be deemed to be a party to the reference.

Powers of Court.

206dd. On the hearing of any reference under this part of this Act the Court of Disputed Returns shall sit as an open Court and shall have the powers conferred by section one hundred and ninety-seven of this Act so far as they are applicable, and in addition thereto shall have power—

(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;

(c) to declare that there is a vacancy in the Senate or in the House of Representatives.

Order to be sent to House affected.

206e. After the hearing and determination of any reference under this part of this Act the Principal Registrar or District 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.

Application of certain sections.

206f. The provisions of sections one hundred and ninety-nine two hundred and one two hundred and two a two hundred and two b two hundred and four two hundred and five and two hundred and six shall apply so far as applicable to proceedings on a reference to the Court of Disputed Returns under this part of this Act.

 

Overview

The Disputed Elections and Qualifications Act 1907 was enacted by the Parliament of Australia to address the need for a structured legal process to handle disputes regarding the election, qualifications, and vacancies of Senators and Members of the House of Representatives. This Act was designed to ensure that any disputes concerning the legitimacy of elections or the eligibility of members of the Parliament could be resolved in a fair and definitive manner. It integrates seamlessly with the Commonwealth Electoral Acts 1902–1905, providing a unified legal framework for electoral disputes. The primary policy objective of this legislation is to establish a clear and transparent procedure for resolving disputes through the Court of Disputed Returns, ensuring that the integrity of the electoral process is upheld. By transferring certain petitions from the Senate to the High Court, the Act aims to provide a more impartial and judicial resolution to contentious issues.

Scope and Application

The Disputed Elections and Qualifications Act 1907 applies to the resolution of disputes concerning the validity of the election of a Senator and the qualifications of Senators or Members of the House of Representatives, as well as vacancies in either House of the Parliament. This Act is a part of the Commonwealth Electoral Acts 1902–1905 and extends its provisions to include these specific matters. The Act operates within the jurisdictional reach of the Commonwealth, providing a mechanism for the High Court’s Court of Disputed Returns to handle petitions that were previously dealt with by the Senate. These petitions can relate to any election, qualification, or vacancy issues in the Senate or House of Representatives. The Act does not specify any exclusions or exemptions but provides a clear process for transferring such petitions to the Court of Disputed Returns, ensuring they are heard by a Full Court of at least three judges. The Act’s provisions can be further extended or modified through subordinate instruments, allowing for detailed procedural rules and regulations to be established by the High Court.

Key Provisions

The Disputed Elections and Qualifications Act 1907 (C1907A00010) introduces significant changes to the process for handling disputes concerning the qualifications of Senators and vacancies in either House of the Australian Parliament. Section 2 (1) of the Act removes any petition disputing the validity of a Senator's election or questioning their qualifications, which is currently before the Senate or has been referred to the High Court, into the Court of Disputed Returns. This transfer happens automatically and does not require a court order. The Clerk of the Parliaments is mandated to transmit such petitions to the Principal Registry of the High Court, at which point the Senate loses all authority over the petition, and the Court of Disputed Returns gains jurisdiction. A Full Court of at least three judges will hear and determine these petitions, applying the same procedural rules as outlined in the Commonwealth Electoral Acts 1902–1905 (referred to as the Principal Act). Under the Act, the Court of Disputed Returns is given extensive powers to declare ineligibility and to address vacancies. Specifically, Section 206dd empowers the Court to declare that a person was not qualified to be a Senator or a Member of the House of Representatives, that they were not capable of being chosen or sitting as such, and that there is a vacancy in either House. These declarations are binding, and the Court can make any order necessary to address the situation. After the Court determines a petition, the Principal or District Registrar of the High Court must promptly forward a copy of the Court's order or declaration to the Clerk of the relevant House of Parliament. The Act imposes clear obligations on various parties. The Senate and the House of Representatives must refer any questions about the qualifications of a Senator or a Member of the House of Representatives, or vacancies in either House, to the Court of Disputed Returns (Section 206aa). The President of the Senate or the Speaker of the House of Representatives is required to provide a detailed statement of the question, along with any relevant documents, to the Court (Section 206bb). The Court, in turn, has the responsibility to hear and determine these references, ensuring that any findings are communicated to the appropriate House (Section 206e). Failure to comply with the provisions of the Disputed Elections and Qualifications Act 1907 can result in legal consequences. While the Act does not explicitly detail specific offences or penalties for non-compliance, breaches of the Act could potentially lead to legal challenges or disputes over the validity of elections and qualifications of Senators and Members of Parliament. The seriousness of such breaches could result in judicial review or other legal actions, depending on the specific circumstances and the impact on parliamentary processes.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.