Free v Kelly [1996] HCA 42

Free v Kelly [1996] HCA 42

Ms Kelly was incapable of being chosen as a member of the House of Representatives at the time of her nomination due to being an officer of the RAAF under s 44(iv) of the Constitution. Since the inclusion of an ineligible candidate distorted electors' preferences and a special count would not fairly reflect the electors' true intentions, the election was absolutely void and a new election was required.

Jurisdiction
Australia
Procedural Posture
Election Petition / Judgment After Trial of Petition
Outcome
Election declared absolutely void. First respondent ordered to pay part of petitioner's costs. No special count or further order for costs against Commonwealth or Australian Electoral Commission.
Legal Topics
['ineligibility of Electoral Candidates' 'void Elections Under the Constitution' 'costs Orders in Electoral Disputes']
['constitutional Law' 'electoral Law'] ['ineligibility of Electoral Candidates' 'void Elections Under the Constitution' 'costs Orders in Electoral Disputes']

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Procedural Posture

Election Petition / Judgment After Trial of Petition

Legal Issues

  1. 1 ['Whether Ms Kelly was incapable of being chosen as a member of the House of Representatives for the Division of Lindsay under s 44(iv) of the Constitution' 'Whether the election should be declared void or whether a special count of the ballots should be ordered']

Ratio Decidendi

Ms Kelly was incapable of being chosen as a member of the House of Representatives at the time of her nomination due to being an officer of the RAAF under s 44(iv) of the Constitution. Since the inclusion of an ineligible candidate distorted electors' preferences and a special count would not fairly reflect the electors' true intentions, the election was absolutely void and a new election was required.

Court Disposition

Election declared absolutely void. First respondent ordered to pay part of petitioner's costs. No special count or further order for costs against Commonwealth or Australian Electoral Commission.

Orders

  • ['Declare that the first respondent was not capable of being chosen as a member of the House of Representatives for the Division of Lindsay at the election held on 2 March 1996.' 'Declare that the first respondent was not duly elected as a member of the House of Representatives for the Division of Lindsay at the...