No election and no return to the House of Representatives shall be questioned except by a petition complaining of an unlawful election or unlawful return (in this Act referred to as an election petition) presented in accordance with this Part.
A petition complaining of no return shall be deemed to be an election petition, and the High Court or the Court of Appeal may make such order thereon as the court thinks expedient for compelling a return to be made or may allow the petition to be heard as provided with respect to ordinary election petitions.
An election petition relating to the return of a member of Parliament representing an electoral district or the failure to present a return at an election for a member of Parliament representing an electoral district shall be presented to the High Court and determined in accordance with sections 230 to 257.
An election petition relating to the allocation of seats by the Electoral Commission under sections 191 to 193 may be presented to the Court of Appeal in accordance with sections 258 to 262.
230. Election petitions to High Court
An election petition to which section 229(3) applies may be presented to the High Court by 1 or more of the following persons:
a person who voted or had a right to vote at the election:
a person claiming to have had a right to be elected or returned at the election:
a person alleging himself or herself to have been a constituency candidate at the election.
The member whose election or return is complained of shall be the respondent to the petition, and, if the petition complains of the conduct of the Returning Officer or Registrar of Electors, he or she shall also be a respondent.
The petition shall be in such form and state such matters as are prescribed by rules of court, and be signed by the petitioner or all the petitioners if more than 1.
The petition shall be presented by filing it in the registry of the High Court nearest to the place where the election was held. The Registrar of the court shall forthwith send a copy of the petition to the Returning Officer.
The petition shall be served as nearly as may be in the manner in which a statement of claim is served, or in such other manner as may be prescribed by rules of court.
231. Time for presentation of election petition
Subject to the provisions of this section, an election petition shall be presented within 28 days after the day on which the Electoral Commission has publicly notified the result of the poll.
If the petition questions the election or return upon an allegation of a corrupt practice and specifically alleges a payment of money or other reward to have been made by the member or on his or her account or with his or her knowledge and consent since the day of the said declaration in pursuance or furtherance of the alleged corrupt practice, it may be presented within 28 days after the date of the payment.
For the purposes of this section, an allegation that an election is avoided under section 238 shall be deemed to be an allegation of corrupt practices, notwithstanding that the offences alleged are or include offences other than corrupt practices.
232. Security for costs
At the time of presenting an election petition or within 3 days after the expiration of the time limited for the presentation of the petition, the petitioner shall give security to the satisfaction of the Registrar of the court for all costs that may become payable by the petitioner to any witness summoned on the petitioner’s behalf or to any respondent.
The security shall be an amount of $1,000, and shall be given by recognisance to the Crown entered into by any number of sureties not exceeding 5 or by a deposit of money, or partly in one way and partly in the other.
If no security is given as required by this section, no further proceedings shall be taken on the petition.
233. More than 1 petition relating to same election
Where more petitions than 1 are presented relating to the same election or return, all those petitions shall be dealt with as 1 petition.
234. Rules of court
Rules of court may be made in the manner prescribed by the Judicature Act 1908 for the purposes of this Part.
All rules made under this section shall be laid before the House of Representatives not later than the 16th sitting day of the House of Representatives after the day on which they are made.
Subpart 4. Trial of election petition
235. Court and place of trial
Every election petition to which section 229(3) applies shall be tried by the High Court, and the trial shall take place before 3 Judges of the court to be named by the Chief Justice.
If any such Judge, before the conclusion of the trial, becomes unable to act, the Chief Justice shall name another Judge to act in his or her place.
The place of trial shall be at the registry of the court where the petition is filed: provided that the High Court, on being satisfied that special circumstances exist rendering it desirable that the petition should be tried elsewhere, may appoint such other place for the trial as appears most convenient.
236. Trial of petition
An election petition to which section 229(3) applies shall be tried in open court without a jury, and notice of the time and place of trial shall be given not less than 14 days before the day of trial.
The court may in its discretion adjourn the trial from time to time, but the trial shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day on every lawful day until its conclusion.
The trial of an election petition shall be proceeded with notwithstanding that the respondent may have become disqualified as a member of Parliament, or that Parliament may have been prorogued.
Subject to this Act, the court shall have jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as the court thinks fit, and, in particular, may at any time during the trial direct a recount or scrutiny of some or all of the votes given at the election, and shall disallow the vote of every person proved to have been guilty of any corrupt practice, or whose name has been wrongly placed or retained on the roll.
Notwithstanding subsection (4), the vote of any person who on polling day was entitled to be registered as an elector of the district shall not be disallowed on the ground that his or her name has been wrongly placed or retained on the roll.
Notwithstanding subsection (4), where an elector—
has been registered as an elector of the district by an error on the part of an official; and
has exercised his or her vote in respect of that district in good faith without notice of the error,— his or her vote shall not be disallowed by reason only of that error.
On the trial of an election petition, unless the court otherwise directs, any charge of a corrupt or illegal practice may be gone into, and evidence in relation thereto received before any proof has been given that any candidate was aware of or consenting to the corrupt or illegal practice.
On the trial of an election petition to which section 229(3) applies complaining of an unlawful election or return and claiming the seat for some person, the respondent may give evidence to prove that that person was not duly elected, in the same manner as if the respondent had presented a petition against the election of that person.
237. Avoidance of election of candidate guilty of corrupt practice
Where a candidate who has been elected at any election is proved at the trial of an election petition to which section 229(3) applies to have been guilty of any corrupt practice at the election, his or her election shall be void.
238. Avoidance of election for general corruption
Where it is reported by the High Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any constituency candidate or constituency candidates thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the constituency candidate’s election, if the candidate has been elected and is a respondent, shall be void.
Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices.
239. Votes to be struck off for corrupt practices
Where, on the trial of an election petition to which section 229(3) applies claiming the seat for any person, a constituency candidate is reported by the High Court to have been proved guilty of bribery, treating, or undue influence in respect of any person who voted at the election, there shall, on a scrutiny, be struck off from the number of votes appearing to have been received by the candidate 1 vote for every person who voted at the election and is reported to have been proved to have been so bribed, treated, or unduly influenced.
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the court shall be guided by the substantial merits and justice of the case without regard to legal forms or technicalities:
the court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the High Court.
241. Irregularities not to invalidate election
No election shall be declared invalid by reason of—
any failure to comply with the times prescribed for doing any act; or
any omission or irregularity in filling out any form prescribed by this Act or by regulations made thereunder; or
any want or defect in the appointment of any official or scrutineer; or
any absence of, or mistake or omission or breach of duty by, any official, whether before, during, or after the polling—
if the court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections, and that the failure, omission, irregularity, want, defect, absence, mistake, or breach did not affect the result of the election.
242. Decision of court to be final
All decisions of the High Court under this Part shall be final and conclusive and without appeal, and shall not be questioned in any way.
243. Certificate of court as to result of election
At the conclusion of the trial of an election petition to which section 229(3) applies, the court shall determine whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void, and shall forthwith certify in writing the determination to the Speaker, and the determination so certified shall be final to all intents and purposes.
243A. Orders to be made by court after determination under section 243 if list seats allocated
This section applies if, at the conclusion of the trial of an election petition,—
the court determines, under section 243, that the candidate who was duly elected was not declared elected under section 179(2) and the candidate who was declared elected under section 179(2) was not duly elected; and
an allocation of seats by the Electoral Commission under sections 191 to 193 has been made.
If this section applies, the court must—
make an order that any declaration of election made pursuant to section 193(5) is invalid so far as it relates to the election of any specified candidate and that the election of any specified candidate is void; and
order that the Electoral Commission repeat any or all of the procedures prescribed by sections 191 to 193 and make a further declaration under section 193(5); and
immediately certify in writing to the Speaker the orders made under paragraphs (a) and (b).
The orders certified under subsection (2)(c) are final for all purposes.
244. Report of court as to corrupt or illegal practices
Where, in an election petition to which section 229(3) applies, any charge is made of any corrupt or illegal practice having been committed at the election, the court shall, in addition to giving a certificate and at the same time, report in writing to the Speaker as follows:
whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any constituency candidate at the election, and the nature of the corrupt or illegal practice:
whether any of the constituency candidates has been guilty by his or her agents of any corrupt or illegal practice in reference to the election:
the names of all persons proved at the trial to have been guilty of any corrupt or illegal practice and whether they have received certificates of indemnity:
whether there is reason to believe that corrupt or illegal practices have extensively prevailed at the election.
In the case of someone who is not a party to the petition nor a constituency candidate on behalf of whom the seat is claimed by the petition, the court, before reporting him or her to have been proved guilty of any corrupt or illegal practice, shall first cause notice to be given to him or her, and if he or she appears in pursuance of the notice, shall give him or her an opportunity of being heard and of calling evidence in his or her defence to show why he or she should not be so reported.
For the purposes of this Act, if it is reported by the court that a corrupt or illegal practice was committed with the knowledge and consent of a constituency candidate, he or she shall be treated as having been reported to have been proved guilty of that corrupt or illegal practice.
If a constituency candidate is reported to have been guilty by his or her agents of treating, undue influence, or any illegal practice, and the court further reports—
that no corrupt or illegal practice was committed at the election by the constituency candidate with his or her knowledge or consent, and that the offences mentioned in the report were committed without the sanction or connivance of the constituency candidate; and
that all reasonable means for preventing the commission of corrupt and illegal practices at the election were taken by and on behalf of the constituency candidate; and
that the offences mentioned in the report were of a trivial, unimportant, and limited character; and
that in all other respects the election was free from any corrupt or illegal practice on the part of the constituency candidate and of his or her agents,—
the constituency candidate shall not be treated for the purposes of this Act as having been reported to have been proved guilty of the offences mentioned in the report.
245. Special report
At the same time as the court gives its certificate at the conclusion of the trial of an election petition to which section 229(3) applies, the court may make a special report to the Speaker as to any matters arising in the course of the trial an account of which, in the judgment of the court, ought to be submitted to the House of Representatives.
246. Signature and effect of certificate and report
The certificate and any report of the court at the conclusion of the trial of an election petition shall be signed by at least 2 of the Judges presiding at the trial.
On being informed by the Speaker of the certificate and any report of the court, the House of Representatives shall order the same to be entered in the Journals of the House, and shall give the necessary directions for confirming or altering the return, or for issuing a writ for a new election, or for carrying out the determination, as the circumstances may require.
Where the court makes a special report, the House may make such order in respect of that report as the House thinks proper.
Subpart 5. Witnesses
247. Summons and examination of witnesses
Witnesses may be summoned and sworn on the trial of an election petition to which section 229(3) applies in the same manner, as nearly as circumstances admit, as in the trial of an ordinary action.
The High Court may by order require any person who appears to the court to have been concerned in the election to attend as a witness, and every person who refuses to obey any such order shall be guilty of contempt of court.
The court may examine any person so required to attend or any person in court, although he or she is not called or examined by any party to the petition.
After the examination of a witness as aforesaid by the court, he or she may be cross-examined by or on behalf of the petitioner and respondent, or either of them.
248. Certificate of indemnity to witness
A person called as a witness on the trial of an election petition to which section 229(3) applies shall not be excused from answering any question relating to any offence at or connected with the election on the ground that the answer thereto may incriminate or tend to incriminate himself or herself, or on the ground of privilege: provided that—
an answer by a person to a question put by or before the court shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against that person in any proceeding, civil or criminal:
a witness who answers truly all questions which he or she is required by the court to answer shall be entitled to receive a certificate of indemnity, stating that he or she has so answered.
Where a person has received a certificate of indemnity in relation to an election, and any legal proceeding is at any time instituted against that person for any offence committed by that person at or in connection with the election previously to the date of the certificate, the court having cognisance of the case shall on production of the certificate stay the proceeding, and may in its discretion award to the said person such costs as he or she has been put to in the proceeding.
Nothing in this section shall be deemed to relieve a person receiving a certificate of indemnity from any incapacity under this Act or from any proceedings to enforce any such incapacity (other than a criminal prosecution).
249. Expenses of witnesses
The reasonable expenses incurred by any person in appearing to give evidence at the trial of an election petition to which section 229(3) applies, according to the scale allowed to witnesses on the trial of civil actions, may be allowed to him or her by the court.
Any such expenses, if the witness was called and examined by the court, shall be deemed to be part of the expenses of the court, and in other cases shall be deemed to be costs of the petition.
Subpart 6. Costs
250. Costs of petition
All costs of and incidental to the presentation of an election petition to which section 229(3) applies, and to the proceedings consequent thereon, except such as are by this Act otherwise provided for shall be defrayed by the parties to the petition in such manner and in such proportions as the High Court may determine; and, in particular, any costs which, in the opinion of the court, have been caused by vexatious conduct, unfounded allegations, or unfounded objections on the part either of the petitioner or of the respondent, and any needless expenses incurred or caused on the part of the petitioner or respondent, may be ordered to be defrayed by the parties by whom they were caused or incurred, whether those parties are or are not on the whole successful.
If a petitioner fails for 6 months after demand to pay to any person summoned as a witness on the petitioner’s behalf, or to the respondent, any sum certified to be due to that person for costs, and the failure is within 1 year after the demand proved to the satisfaction of the High Court, every person who has under this Act entered into a recognisance relating to the petition shall be held to have made default in the recognisance, and it shall be dealt with in the manner provided by section 21 of the Crown Proceedings Act 1950.
251. Costs payable by persons proved guilty of corrupt or illegal practices
Where on the trial of an election petition to which section 229(3) applies it appears to the court that any person has been guilty of any corrupt or illegal practice, the court may, after giving that person an opportunity of making a statement to show why the order should not be made, order the whole or any part of the costs of or incidental to any proceedings before the court in relation to that offence or to that person to be paid by that person to such other person or persons as the court thinks fit.
All costs so ordered to be paid may be recovered as a debt due by the person by whom they are ordered to be paid to the person or persons to whom they are ordered to be paid.
Subpart 7. Withdrawal and abatement of petitions
252. Withdrawal of petition
A petitioner shall not withdraw an election petition to which section 229(3) applies without the leave of the High Court upon special application to be made in the prescribed manner.
No such application shall be made until the prescribed notice of the intention to make it has been given in the district to which the petition relates.
Where there are more petitioners than 1, an application to withdraw the petition shall not be made except with the consent of all the petitioners.
If a petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent.
253. Substitution of new petitioner
On the hearing of an application for leave to withdraw a petition, any person who might in the first instance have presented the petition may apply to the court to be substituted as a petitioner.
The court may, if it thinks fit, substitute any such applicant as petitioner, and may, if the proposed withdrawal is in the opinion of the court the result of any corrupt bargain or consideration, by order direct that the security given on behalf of the original petitioner shall remain as security for any costs incurred by the substituted petitioner, and that to the extent of the sum named in the security the original petitioner shall be liable to pay the costs of the substituted petitioner.
If the court does not so direct, security to the same amount as would be required in the case of a new petition, and subject to the like conditions, shall be given on behalf of the substituted petitioner within 3 days after the order of substitution.
Subject as aforesaid, a substituted petitioner shall as nearly as may be stand in the same position and be subject to the same liabilities as the original petitioner.
254. Report on withdrawal
In every case of the withdrawal of an election petition to which section 229(3) applies, the High Court shall make a report to the Speaker stating whether in its opinion the withdrawal of the petition was the result of any corrupt arrangement or in consideration of the withdrawal of any other election petition and, if so, the circumstances attending the withdrawal.
255. Abatement of petition
An election petition to which section 229(3) applies shall be abated by the death of a sole petitioner or of the survivor of several petitioners.
The abatement of a petition shall not affect the liability of the petitioner or any other person to the payment of costs previously incurred.
On the abatement of a petition, notice of the abatement shall be given in the prescribed manner; and, within 28 days after the notice is given, any person who might have been a petitioner in respect of the election may apply to the High Court in the prescribed manner to be substituted as a petitioner. On any such application the High Court may, if it thinks fit, substitute the applicant accordingly.
Security shall be given on behalf of a petitioner so substituted, as in the case of a new petition.
Subpart 8. General provisions
256. Withdrawal and substitution of respondents before trial
If, before the trial of an election petition to which section 229(3) applies, a respondent other than the Returning Officer or a Registrar of Electors—
dies; or
gives the prescribed notice that he or she does not intend to oppose the petition; or
loses his or her seat by reason of the House of Representatives resolving that the seat is vacant,— notice thereof shall be given in the prescribed manner; and, within 28 days after the notice is given, any person who might have been a petitioner in respect of the election may apply to the High Court to be admitted as a respondent to oppose the petition, and shall be admitted accordingly, except that the number of persons so admitted shall not exceed 3.
A respondent who has given the prescribed notice that he or she does not intend to oppose the petition shall not be allowed to appear or act as a party against the petition in any proceedings thereon, and shall not sit or vote in the House of Representatives until that House has been informed of the report on the petition.
Where a respondent has given the prescribed notice as aforesaid, the court shall report that fact to the Speaker.
257. Submission of report to Attorney-General
Where the High Court reports that certain persons named have been proved at the trial of an election petition to have been guilty of any corrupt or illegal practice, the report shall be given to the Attorney-General.
258. Electoral petitions to Court of Appeal
An electoral petition relating to the allocation of seats under sections 191 to 193 may be presented to the Court of Appeal by a secretary of a political party whose party was listed in the part of the ballot paper that relates to the party vote.
The petition may seek a review of the procedures and methods used to allocate seats to political parties under sections 191 to 193, and the return of members of Parliament consequential upon that allocation.
The respondents shall be the other political parties named in the part of the ballot paper that relates to the party vote, and, if the conduct of the Electoral Commission is complained of, the Electoral Commission.
Subject to subsections (1) to (3), the petition shall be in such form and state such matters as are prescribed by rules of court, and be signed by the petitioner or all the petitioners if more than 1.
The petition shall be presented by filing it in the Registry of the Court of Appeal. The Registrar of the court shall forthwith send a copy of the petition to the Electoral Commission.
The petition shall be served as nearly as may be in the manner in which a statement of claim is served, or in such other manner as may be prescribed by rules of court.
259. Time for presentation of an election petition to Court of Appeal
An election petition under section 258 shall be presented within 28 days of the date of the declaration made under section 193(5) by the Electoral Commission.
260. Matters excluded from challenge
On the hearing of a petition presented pursuant to section 258, no decision shall be subject to challenge on the grounds—
that the vote of any elector should have been disallowed because he or she was not qualified to vote in the electoral district in respect of which he or she cast his or her vote; or
that the vote of any voter that was disallowed should have been allowed; or
that a candidate or candidates, or the agent of any candidate, was engaged in a corrupt or illegal practice; or
that corrupt or illegal practices prevailed at the election.
261. Provisions applied
Where any petition is presented under section 258, the provisions of sections 232 to 235, subsections (1) to (3) and (8) of section 236, sections 240 to 242, sections 245 to 250, and section 252 (other than subsection (2)), shall apply, with any necessary modifications, as if references to the High Court were references to the Court of Appeal.
262. Certificate of court as to result of petitions
At the conclusion of the trial of an election petition to which section 258 applies, the Court of Appeal shall—
determine whether the procedures used to allocate seats to political parties under sections 191 to 193 were correct:
determine whether the return of members of Parliament consequential upon the allocation under sections 191 to 193 is valid:
make such orders as are necessary to correct any error or invalidity, including—
an order that any declaration of election made pursuant to section 193(5), so far as it relates to any candidate named in the order, is invalid and the election of that candidate void:
an order that any candidate not named in a declaration of election made pursuant to section 193(5) is elected as a member of Parliament:
an order requiring the Electoral Commission to repeat any or all of the procedures prescribed by sections 191 to 193:
forthwith certify in writing its determination to the Speaker and the determination so certified shall be final to all intents and purposes.
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