Election Petition (Bradfield) – S100/2025

Administered by Attorney-General's Department, Department of Finance

Legislation au C2025G00360 In force Gazette

Legislation content

ELECTION PETITION (BRADFIELD) – S100/2025

 

Form 22

 

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS 

 

SYDNEY REGISTRY

 

 

BETWEEN:                                                                                                    GISELE KAPTERIAN
                                                                                                                                                      Petitioner

 

   and

 

                                                                                                                               NICOLETTE BOELE             

                                                                                                                                        First respondent

 

 

                                                                     THE AUSTRALIAN ELECTORAL COMMISSION 

                                                                                                                            Second respondent

 

 

ELECTION PETITION

 

This petition concerns the election to the House of Representatives for the electoral division of Bradfield, New South Wales, held on 3 May 2025.

 

RETURN OF WRIT

The writ for the election was returned on 12 June 2025.

 

ENTITLEMENT TO FILE THIS PETITION

The petitioner is entitled to file this petition because she was a candidate at the election in dispute.

 

STATEMENT OF FACTS

  1.       On 3 May 2025, there was a federal election.  As a part of the federal election, there was an election to the House of Representatives for the electoral division of Bradfield (the Election).
  2.       There were 8 candidates in the Election, including the petitioner and the first respondent.
  3.       From shortly after 6.00 pm on 3 May 2025, to 23 May 2025, the second respondent conducted a first count of the votes cast in the Election.
  4.       At the conclusion of the full distribution of preferences on the first count, the petitioner led the first respondent by a margin of 8 votes.
  5.       The second respondent’s Divisional Returning Officer for Bradfield determined that there would be a formal recount.
  6.       From shortly after 9.00 am on 26 May 2025, to 4 June 2025, the second respondent conducted a formal recount of the votes cast in the Election.
  7.       From around midday on 26 May 2025, to 4 June 2025, Ms Rebecca Main, the Australian Electoral Officer for New South Wales (the AEO), made determinations in respect of 795 reserved ballot-papers (AEO determinations). 
  8.       At the conclusion of the formal recount, the first respondent was declared the successful Election candidate, with a margin of 26 votes.
  9.       Within the AEO determinations the AEO wrongly rejected at least 56 of the reserved ballot-papers, where those ballot-papers indicated a preference, by the voter, for the petitioner ahead of the first respondent. In particular:
    1.        The AEO rejected:
      1.       at least 1 ballot-paper on the basis that she was not satisfied that the figure 1 in one square was distinguishable from the figure in another square;
      2.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 2 in one square was distinguishable from the figure in another square;
      3.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 3 in one square was distinguishable from the figure in another square;
      4.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 4 in one square was distinguishable from the figure in another square;
      5.       at least 5 ballot-papers on the basis that she was not satisfied that the figure 5 in one square was distinguishable from the figure in another square;
      6.       at least 4 ballot-papers on the basis that she was not satisfied that the figure 6 in one square was distinguishable from the figure in another square;
      7.       at least 1 ballot-paper on the basis that she was not satisfied that the figure 7 in one square was distinguishable from the figure in another square; and
      8.       at least 2 ballot-papers on the basis that she was not satisfied that the figure 8 in one square was distinguishable from the figure in another square.

Each decision was made even though in each case the two figures were distinguishable, such that one of the figures was a different figure from 1 to 8; it was clear from the ballot-paper as a whole that the voter intended to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.

  1.       The AEO rejected:
    1.       at least 4 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 1;
    2.       at least 3 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 2;
    3.       at least 3 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 3;
    4.       at least 8 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 4;
    5.       at least 5 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 5;
    6.       at least 2 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 6; and
    7.       at least 7 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 7.

Each decision was made even though in each case the figure in question was discernible and the remaining squares on the ballot-paper contained the remaining figures 1 to (at least) 7; it was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure in question, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.

  1.        The AEO rejected at least 2 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 8. This decision was made even though in each case the figure 8 was discernible and the remaining squares on the ballot-paper contained the remaining figures 1 to 7; it was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 8, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.
  1.   Further or alternatively, within the AEO determinations the AEO wrongly admitted at least 95 of the reserved ballot-papers, where those ballot-papers indicated a preference, by the voter, for the first respondent ahead of the petitioner. In particular:
    1.        The AEO admitted:
      1.       at least 10 ballot-papers on the basis that she was satisfied that the figure 1 in one square was distinguishable from the figure in another square;
      2.       at least 9 ballot-papers on the basis that she was satisfied that the figure 2 in one square was distinguishable from the figure in another square;
      3.       at least 5 ballot-papers on the basis that she was satisfied that the figure 3 in one square was distinguishable from the figure in another square;
      4.       at least 2 ballot-papers on the basis that she was satisfied that the figure 4 in one square was distinguishable from the figure in another square;
      5.       at least 4 ballot-papers on the basis that she was satisfied that the figure 5 in one square was distinguishable from the figure in another square;
      6.       at least 10 ballot-papers on the basis that she was satisfied that the figure 6 in one square was distinguishable from the figure in another square;
      7.       at least 6 ballot-papers on the basis that she was satisfied that the figure 7 in one square was distinguishable from the figure in another square;
      8.       at least 3 ballot-papers on the basis that she was satisfied that the figure 8 in one square was distinguishable from the figure in another square;

Each decision was made even though in each case the two figures were not distinguishable; it was not clear from the ballot-paper as a whole that the voter intended to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was informal and should not have been admitted.

  1.       The AEO admitted:
    1.       at least 5 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 1;
    2.       at least 3 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 2;
    3.       at least 2 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 3;
    4.       at least 8 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 4;
    5.       at least 8 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 5;
    6.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 6;
    7.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 7; and
    8.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 8.

Each decision was made even though in each case the figure in question was not discernible; it was not clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure in question, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was informal and should not have been admitted.

  1.        The AEO admitted at least 2 ballot-papers despite the ballot-paper in each case having upon it a mark or writing (not authorised by the Act or the regulations to be put upon it) by which the voter could be identified. In each such case the ballot-paper was informal and should not have been admitted.
  1.   In making the erroneous determinations referred to in paragraphs 9 and/or 10 above, the AEO contravened s 279B(7) of the Commonwealth Electoral Act 1918 (Cth) (the Act).
  2.   In the premises:
    1.        illegal practices were committed in connexion with the Election, within the meaning of ss 352(1) and 360(3) of the Act;
    2.       the first respondent was not duly elected at the Election; and
    3.        the petitioner was duly elected at the Election.

 

RELIEF

  1.     The petitioner asks the Court to declare:
  1.       Pursuant to ss 360(1)(v) and (3) of the Act, that first respondent, who was returned as elected, was not duly elected to the House of Representatives for the electoral division of Bradfield.
  2.       Pursuant to s 360(1)(vi) and (3) of the Act, that the petitioner was duly elected to the House of Representatives for the electoral division of Bradfield.
  1.      The petitioner asks the Court to order, pursuant to s 360 of the Act, that the respondents, alternatively the Commonwealth, pay the petitioner’s costs of the petition.

 

Dated 15 July 2025

 

…….....................................

Gisele Kapterian, Petitioner

 

IN THE PRESENCE OF:

 

 

..................................... .........................................

Signed by Witness Signed by Witness

 

 

..................................... .........................................

Name of Witness Name of Witness

 

 

..................................... .........................................

Occupation of Witness Occupation of Witness

 

 

..................................... .........................................

Address of Witness Address of Witness

 

 

TO:

 

THE FIRST RESPONDENT

Ms Nicolette Boele

 

AND TO:

 

THE SECOND RESPONDENT
The Australian Electoral Commission

 

The petitioner is represented by Buchanan Rees Dispute Lawyers

 

Overview

The Commonwealth Electoral Act 1918, enacted by the Commonwealth Parliament, governs the conduct of elections for the Commonwealth Parliament in Australia. This legislation was introduced to ensure the integrity and fairness of the electoral process, providing a comprehensive framework for the conduct of elections. The Act sets out rules for voter eligibility, the conduct of candidates, the administration of elections, and the resolution of disputes. The primary policy objective of the Act is to uphold the democratic principles of free and fair elections, ensuring that the electoral process is conducted in a manner that reflects the will of the electorate. This case involves an Election Petition concerning the House of Representatives election for the electoral division of Bradfield, New South Wales, held on 3 May 2025. The petitioner, Gisele Kapterian, has brought this petition due to alleged irregularities in the conduct of the election, specifically the handling of reserved ballot papers by the Australian Electoral Officer for New South Wales. The petitioner contends that these errors in the processing of ballot papers resulted in an improper declaration of the first respondent, Nicolette Boele, as the elected candidate, and seeks a declaration that she, the petitioner, was duly elected.

Scope and Application

The Commonwealth Electoral Act 1918 (Cth) applies to the conduct of federal elections in Australia, encompassing the electoral process, the conduct of candidates, and the administration of elections by the Australian Electoral Commission. The Act applies to all persons participating in the electoral process, including candidates, voters, and electoral officials. It covers conduct from the nomination period through to the declaration of election results. The Act’s jurisdictional reach is national, as it governs federal elections across all states and territories of Australia. There are no stated exclusions or exemptions within the Act, except for certain postal and special votes provisions. The Act may extend or restrict its application through subordinate instruments, such as regulations made under its authority, which may detail specific processes or additional requirements for particular aspects of the electoral process. In this instance, the petitioner Gisele Kapterian seeks a declaration that the first respondent, Nicolette Boele, was not duly elected, and that she, the petitioner, was duly elected to the House of Representatives for the electoral division of Bradfield, on the basis of alleged illegal practices by the Australian Electoral Officer in handling reserved ballot-papers.

Key Provisions

The primary operative sections of this legislation include sections 352(1), 360(1)(v), and 360(1)(vi) of the Commonwealth Electoral Act 1918 (Cth), which pertain to the declaration of an election as invalid due to illegal practices and the determination of who is duly elected to the House of Representatives. Section 352(1) of the Act defines illegal practices in connection with an election, while sections 360(1)(v) and 360(1)(vi) empower the Court of Disputed Returns to declare a candidate not duly elected or to declare another candidate duly elected, respectively. The Act imposes several obligations on the parties involved, including the requirement for the Australian Electoral Commission (AEC) to conduct fair and accurate vote counts. This includes the proper examination and determination of reserved ballot papers to ensure they reflect the voter's intentions accurately. Section 279B(7) of the Act specifies the criteria for determining the validity of ballot papers, which the Australian Electoral Officer (AEO) in this case failed to adhere to, resulting in incorrect rejections and admissions of ballot papers. The petitioner, Gisele Kapterian, has brought this petition based on the erroneous decisions made by the AEO during the formal recount of the votes. These errors led to the incorrect declaration of Nicolette Boele as the successful candidate. The AEC, as the second respondent, is responsible for ensuring that all electoral processes comply with the Act, including the proper handling and adjudication of ballot papers. In terms of offences, penalties, or consequences for breach, the Act does not specify a particular offence in this instance but outlines the potential civil consequences of such breaches. If the Court finds that the AEC's actions were in breach of the Act, it may declare that Nicolette Boele was not duly elected, and Gisele Kapterian was duly elected. This could result in the Court ordering that the respondents, or alternatively the Commonwealth, pay the petitioner’s costs associated with the petition. There are no specified maximum penalties within the text provided, but the consequences can be significant in terms of electoral integrity and the costs incurred by the parties involved.

Legal classification tags

Area of Law
Election Law
Instrument
Gazette Notice
Concepts
Definitions & Interpretation
Enforcement Powers
Offence Provisions

Interactions

Authorises

All Versions

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.