Election petition (ATSI Act) (Rule 34.92(1)) (Form 103)

Schedule 4 to the Aboriginal and Torres Strait Islander Act 2005 says the validity of a Torres Strait Regional Authority (TSRA) election, or of the declaration of a poll, may be disputed only by petition to the Federal Court (cl 2). The petition must set out the facts relied on to invalidate the election, ask for the relief claimed, be signed by a candidate or a person who was or claimed to be qualified to vote, and be attested by 2 witnesses whose occupations and addresses are stated (cl 3). Rule 34.92 of the Federal Court Rules 2011 requires the petition to be in accordance with Form 103 and the petitioner to deposit $100 as security for costs.

When you need it

• You were a candidate, or a person qualified (or claiming to be qualified) to vote, at a TSRA election and believe the election or the declaration of the poll was invalid.
• You are acting for the Electoral Commission, which may also file a petition (cl 5).
• You are within the 40-day time limit (cl 3A).

1. 1

   Heading

   Complete the District Registry and Division, keep the line 'In the matter of a disputed election under the Aboriginal and Torres Strait Islander Act 2005', and name the person returned at the election as the respondent (r 34.92(2)).

2. 2

   The election

   State whether the election was for a single member or 2 or more members, the TSRA ward, and the date or dates it was held.

3. 3

   Facts and orders

   Set out the facts relied on to invalidate the election and the orders sought, such as a declaration that the person returned was not duly elected or that the election is void (cl 10).

4. 4

   Address and service

   Give your address for service and residential or business address, and choose the service option.

5. 5

   Sign and have it attested

   Tick the capacity in which you sign. Clause 3(d) requires 2 attesting witnesses with stated occupations and addresses, so add a second witness if the form shows only one. An Electoral Commission petition is signed by the Electoral Commissioner instead (cl 5(2)).

• File in a Registry of the Court within 40 days after the poll is declared or, for a general election, after the last day on which a poll is declared (cl 3A).
• At filing, deposit $100 as security for costs (cl 4, r 34.92(1)). Proceedings cannot go ahead unless clauses 3, 3A, 4 and 5 are complied with (cl 6).
• The Registrar sends sealed copies to the Electoral Commission and the Minister. You must serve a sealed copy on the respondent at least 5 days before the return date (r 34.92(3)).
• Check the Court's fee schedule for any filing fee in addition to the deposit.

• The 40-day limit and the signing and witnessing requirements are strict. A petition that does not comply cannot proceed (cl 6).
• Set out facts, not just conclusions, since the petition must state the facts relied on (cl 3(a)).
• If you seek a declaration that someone not returned was duly elected, the respondent may file particulars of grounds within 7 days after filing an address for service (r 34.93).