The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. The High Court sitting as the Court of Disputed Returns hears challenges regarding the validity of federal elections (challenges regarding the validity of State elections are heard by the Supreme Court of that State as the State’s Court of Disputed Returns). The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament.
A Court of Disputed Returns is a court, tribunal or some other body that determines disputes about elections in some common law countries, including the former Australian colonies. This jurisdiction of the courts evolved in England (and later in the United Kingdom), as a part of the struggle between the Crown and Parliament, and was largely settled in 1868 when the House of Commons gave the courts of common law jurisdiction to determine disputed returns. The Australian colonies enacted legislation based on the Parliamentary Elections Act 1868 (UK). At the constitutional conventions that led to federation of the Australian colonies in 1901, it was decided that election disputes would be determined by the courts, but the manner in which this was to be achieved was left to the new parliament.
The Constitution of Australia, in sections 73–76, provides the High Court of Australia with original and appellate jurisdiction, and also empowers the Commonwealth parliament to provide additional original jurisdiction. Constitution s 47 more specifically empowers the Parliament to provide that questions of members’ qualifications, of vacancies in either house and of disputed elections shall be determined otherwise than by the house in which they have arisen—which Constitution s 49 states to be the position inherited from the Parliament of the United Kingdom. In 1902 the Parliament provided that the High Court would be the federal Court of Disputed Returns. This jurisdiction is now provided in Part XXII of the Commonwealth Electoral Act 1918.
There has been debate as to whether the determination of disputed returns is consistent with the constitutional role of the High Court in exercising judicial power.
The power of the Court of Disputed Returns was brought to the attention of the public following the 2013 federal election in which the Australian Electoral Commission lost 1,370 ballot papers in Western Australia. Sitting as the Court of Disputed Returns, the High Court declared the Senate election in Western Australia as void, and ordered a special election.
In 2017 there was a series of parliamentary references to the Court of Disputed Returns, to determine the eligibility of a number of members of parliament found or alleged to be dual citizens, contrary to Constitution s 44(i).