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ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 No. 150 of 1989 - SCHEDULE 4

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989 No. 150 of 1989 - SCHEDULE 4

SCHEDULE 4
Section  140 DISPUTES ABOUT ELECTORAL MATTERS
Part 1-Interpretation Interpretation
1. (1) In this Schedule:

"bribery" or "corruption" means a contravention of subsection 198 (1) or (2);

"Court" means the Federal Court of Australia;

"election" means a Regional Council election or a zone election;

"election petition" means a petition addressed to the Court under subclause 2
(1);

"Electoral Commission" means the Australian Electoral Commission;

"illegal practice" means a contravention of this Act, the Regional Council
election rules or the zone election rules;

"reference" means a reference of a question to the Court under clause 17;

"returned" means declared to be elected at a poll for an election;

"undue influence" means a contravention of subsection 198 (3) of this Act or
section 28 of the Crimes Act 1914.

(2) For the purposes of this Schedule, a person who aids, abets, counsels or
procures, or by act or omission is in any way directly or indirectly knowingly
concerned in, or party to, the contravention of a provision of this Act, the
Crimes Act 1914, the Regional Council election rules or the zone election
rules shall be deemed to have contravened that provision.
Part 2-Disputed Elections Method of disputing elections
2. (1) The validity of any election, or of the declaration of a poll for an
election, may be disputed by petition addressed to the Court and not
otherwise.

(2) The Court has jurisdiction to try election petitions.

(3) The jurisdiction of the Court to try election petitions may be exercised
by a single judge of the Court. Requisites of election petitions
3. Subject to clause 5, every election petition shall:

   (a)  set out the facts relied on to invalidate the election or declaration;

   (b)  contain a request for the relief the petitioner claims to be entitled
        to; (c) be signed by a candidate at the election in dispute or by a
        person who was, or who claimed to be, qualified to vote at that
        election;

   (d)  be attested by 2 witnesses whose occupations and addresses are stated;
        and

   (e)  be filed in a Registry of the Court within 40 days after the end of
        the election period. Deposit as security for costs
4. At the time of filing an election petition the petitioner shall deposit
with the Registrar, a Deputy Registrar, a District Registrar or a Deputy
District Registrar of the Court the sum of $100 as security for costs.
Petition by Electoral Commission
5. (1) The Electoral Commission is entitled to file an election petition
disputing an election.

(2) Paragraphs 3 (c) and (d) do not apply in relation to an election petition
filed by the Electoral Commission disputing an election but such a petition
shall be signed by the Electoral Commissioner for and on behalf of the
Commission. No proceedings unless requisites complied with
6. No proceedings shall be had on an election petition unless the requirements
of clauses 3, 4 and 5 are complied with. Right of Electoral Commission to be
represented
7. (1) The Electoral Commission shall be entitled by leave of the Court to
enter an appearance in any proceedings in which the validity of any election
or declaration of a poll is disputed.

(2) Where the Electoral Commission enters an appearance in such proceedings
the Electoral Commission:

   (a)  is entitled to be represented and heard in the proceedings; and

   (b)  shall be taken to be a party respondent to the proceedings. Right of
        Minister to be represented
8. (1) If the Minister thinks that it is in the public interest to do so, the
Minister is entitled to enter an appearance in any proceedings in which the
validity of any election or declaration of a poll is disputed.

(2) When the Minister enters an appearance in such proceedings, the Minister:

   (a)  is entitled to be represented and heard in the proceedings; and

   (b)  shall be taken to be a party respondent to the proceedings. Election
        petitions to be tried in open court
9. When trying an election petition, the Court shall sit as an open court.
Powers of Court
10. (1) The powers of the Court in trying an election petition, include, but
are not limited to, the following powers:

   (a)  to adjourn the proceedings;

   (b)  to compel the attendance of witnesses and the production of documents;

   (c)  to grant to any party to the petition leave to inspect, in the
        presence of a person who was an authorised electoral officer for the
        purposes of Division 4 or 7 of Part 3 in relation to the election
        concerned, the documents (except ballot papers) used at or in
        connection with the election and to take, in the presence of the
        prescribed officer, extracts from those documents;

   (d)  to examine witnesses on oath;

   (e)  to declare that any person who was returned was not duly elected;

   (f)  to declare any candidate duly elected who was not returned;

   (g)  to declare the election absolutely void;

   (h)  to dismiss or uphold the petition in whole or in part;

   (j)  to make any order, or give any direction, that the Court thinks is
        necessary or convenient for the purpose of giving effect to any
        declaration or other decision of the Court in the proceedings;

   (k)  to award costs;

   (m)  to punish any contempt of its authority by fine or imprisonment.

(2) The Court may exercise all or any or its powers under this clause on such
grounds as the Court in its discretion thinks just and sufficient.

(3) Without limiting the powers conferred by this clause, it is hereby
declared that the power of the Court to declare that any person who was
returned was not duly elected, or to declare an election absolutely void, may
be exercised on the ground that illegal practices were committed in connection
with the election.

(4) The power of the Court under paragraph (1) (k) to award costs includes the
power to order costs to be paid by the Commonwealth where the Court considers
it appropriate to do so. Inquiries by Court
11. The Court shall inquire whether or not an election petition is duly
signed, and so far as rolls and voting are concerned may inquire into the
identity of persons, and whether their votes were improperly admitted or
rejected, assuming the Commonwealth Electoral Roll to be correct, but the
Court shall not inquire into the correctness of the Commonwealth
Electoral Roll. Voiding election for illegal practices
12. (1) If the Court finds that a candidate at an election has committed or
has attempted to commit bribery or undue influence, the candidate's election,
if he or she is a successful candidate, shall be declared void.

(2) No finding by the Court shall bar or prejudice any prosecution for any
illegal practice.

(3) The Court shall not declare that any person returned was not duly elected,
or declare any election void:

   (a)  on the ground of any illegal practice committed by any person other
        than the candidate and without his or her knowledge or authority; or

   (b)  on the ground of any illegal practice other than bribery or corruption
        or attempted bribery or corruption; unless the Court is satisfied that
        the result of the election was likely to be affected, and that it is
        just that the candidate should be declared not to be duly elected or
        that the election should be declared void. Court to report cases of
        illegal practices
13. When the Court finds that any person has committed an illegal practice,
the Registrar of the Court shall forthwith report the finding to the Minister.
Immaterial errors not to vitiate election
14. (1) No election shall be avoided on account of any delay in the
declaration of nominations, the polling, or the declaration of the poll, or on
account of the absence or error of or omission by any officer which did not
affect the result of the election.

(2) Where any elector was, on account of the absence or error of, or omission
by, any officer, prevented from voting in any election, the Court shall not,
for the purpose of determining whether the absence or error of, or omission
by, the officer did or did not affect the result of the election, admit any
evidence of the way in which the elector intended to vote in the election.
Evidence that person not permitted to vote
15. On the trial of any election petition the Court shall not admit the
evidence of any witness that he or she was not permitted to vote in the
election during the hours of polling on a polling day unless the witness
satisfies the Court:

   (a)  that he or she claimed to vote, in the election, pursuant to that
        provision of this Act or the Regional Council election rules under
        which he or she was entitled or might be permitted to vote; and

   (b)  that he or she complied with the requirements of this Act, and
        whichever of the Regional Council election rules and the
        zone election rules is applicable, relative to voting by electors in
        so far as he or she was permitted so to do. Deposit applicable for
        costs
16. If costs are awarded to any party against a petitioner, the deposit shall
be applicable in payment of the sum ordered, but otherwise the deposit shall
be repaid to the petitioner.
Part 3-Qualifications and vacancies Reference of question as to qualification
or vacancy
17. (1) Any question respecting:

   (a)  the qualifications of a member of a Regional Council; or

   (b)  a vacancy in a Regional Council; may be referred to the Court by the
        Minister.

(2) The Court has jurisdiction to hear and determine the question.

(3) The jurisdiction of the Court to hear and determine questions may be
exercised by a single Judge of the Court. Minister to state case
18. Where the Minister refers a question to the Court under this Part, the
Minister shall also give to the Court a statement of the question upon which
the determination of the Court is desired, and any documents relating to the
question that are in the Minister's possession. Parties to the reference
19. (1) The Court may:

   (a)  allow any person who, in the Court's opinion, is interested in the
        determination of a question to be heard on the hearing of the
        reference; or

   (b)  direct notice of a reference to be served on any person.

(2) A person who is:

   (a)  allowed to be heard under paragraph (1) (a); or

   (b)  directed to be served under paragraph (1) (b); is a party to the
        reference. References to be heard in open court
20. When hearing a reference, the Court shall sit as an open court. Powers of
Court
21. The powers of the Court in hearing a reference include, but are not
limited to, the following powers:

   (a)  the powers conferred on the Court under clause 10, so far as they are
        applicable;

   (b)  the power to declare that any person was not qualified to be a member
        of a Regional Council;

   (c)  the power to declare that there is a vacancy in a Regional Council.
        Order etc. to be sent to Minister, Commission and Regional Council
        affected
22. After the hearing and determination of a reference, the Registrar of the
Court shall send a copy of the declaration or other decision of the Court to:

   (a)  the Minister;

   (b)  the Commission; and

   (c)  the Regional Council concerned.
Part 4-General Real justice to be observed
23. The Court shall be guided by the substantial merits and good conscience of
each case without regard to legal forms or technicalities, or whether the
evidence before it is in accordance with the law of evidence or not. Decisions
to be final
24. All decisions of the Court shall be final and conclusive and without
appeal, and shall not be questioned in any way. Counsel or solicitor
25. (1) No party to an election petition or a reference shall, except by
consent of all parties, or by leave of the Court, be represented by counsel or
solicitor.

(2) In no case shall more than one counsel or one solicitor appear on behalf
of any party. Costs
26. The Court may award costs against an unsuccessful party to a petition or
reference. Effect of declarations etc.
27. (1) A declaration made by the Court in proceedings under this Schedule has
effect according to its terms.

(2) The validity of anything done by the Commission, or by the person in the
capacity of a Commissioner, is not affected by the fact that a person
appointed as a Commissioner has since ceased to hold office as a Commissioner
because of a declaration of the Court under this Schedule.

(3) The validity of anything done by the Commission or by a Regional Council
is not affected by the fact that a person has since ceased to be a member of a
Regional Council because of a declaration of the Court under this Schedule.
Power to make Rules of Court
28. (1) The judges of the Court or a majority of them may make Rules of Court
not inconsistent with this Act, and the Regional Council election rules and
the zone election rules, for carrying this Schedule into effect and in
particular for regulating the practice and procedure of the Court, the forms
to be used and the fees to be paid by parties.

(2) Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply
in relation to Rules of Court made under this clause as if references in those
sections of that Act to regulations were references to Rules of Court.