Bero v Electoral Commission Queensland & anor; Day v Electoral Commission Queensland & anor; Elisala v Electoral Commission Queensland & anor [2012] QSC 201 [2013] 1 Qd R 403

SUPREME COURT OF QUEENSLAND CITATION: Bero v Electoral Commission Queensland & anor; Day v Electoral Commission Queensland & anor; Elisala v Electoral Commission Queensland & anor [2012] QSC 201 PARTIES: In SC4290/12: FLORIANNA REBECCA BERO (Applicant) v ELECTORAL COMMISSION QUEENSLAND (First Respondent) JERRY DIXIE STEPHEN (Second Respondent) In SC4305/12: RON BARNEY DAY (Applicant) v ELECTORAL COMMISSION QUEENSLAND (First Respondent) AVEN STANLEY NOAH (Second Respondent) In SC4308/12: TORENZO ELISALA (Applicant) v ELECTORAL COMMISSION QUEENSLAND (First Respondent) JOEL GEORGE GAIDEN (Second Respondent) FILE NO/S: SC4290/12; SC4305/12; SC4308/12 DIVISION: Court of Disputed Returns PROCEEDING: Application ORIGINATING COURT: Supreme Court sitting as the Court of Disputed Returns DELIVERED ON: 31 July 2012 DELIVERED AT: Cairns HEARING DATE: 30 July 2012 JUDGE: Henry J ORDER: The Court of Disputed Returns has jurisdiction to hear -- 1 of 11 -- and determine the applications. CATCHWORDS: COURTS AND JUDGES – JURISDICTION – where applications made to the Supreme Court sitting as the Court of Disputed Returns – where it is alleged that the second respondent in each application who was elected to the Torres Strait Island Regional Council was not qualified to be a councillor – whether the Court of Disputed Returns has jurisdiction to hear the matter Electoral Act 1992 (Qld) s 137. Local Government Act 2009 (Qld) ss 152, 157. Local Government Election Act 2011 (Qld) ss 26, 31, 136, 137, 138, 142, 144, COUNSEL: In SC4290/12: DP Morzone for the applicant C Klease for the first respondent PF Mylne for the second respondent In SC4305/12: C Klease for the first respondent SK Growden for the second respondent In SC4308/12: C Klease for the first respondent SK Growden for the second respondent SOLICITORS: In SC4290/12: Preston Law for the applicant Crown Solicitor for the first respondent Jason A Briggs Lawyers for the second respondent In SC4305/12: MacDonnells Law for the applicant Crown Solicitor for the first respondent Miller Harris for the second respondent In SC4308/12: MacDonnells Law for the applicant Crown Solicitor for the first respondent Miller Harris for the second respondent [1] There are three like applications before this court sitting as the Court of Disputed Returns. [2] A preliminary point has been raised by one of the respondents, making it necessary to consider at the outset whether the Court has jurisdiction to hear applications of the kind that are before it. The applications -- 2 of 11 -- [3] Florianna Bero, Ron Day and Torenzo Elisala each filed separate applications to the Court of Disputed Returns in Brisbane on 15 May 2012 (the ―Bero application‖, the ―Day application‖ and the ―Elisala application‖ respectively). Each of those applications disputes the recent election of certain councillors for the Torres Strait Island Regional Council. [4] The Bero application seeks a declaration that the candidate declared to have been elected for Division 13 of the Council, Jerry Dixie Stephen, be taken not to have been elected and orders either that Ms Bero be taken to have been elected or that a new election for the division be held. The Day application seeks a declaration that the candidate declared to have been elected for Division 15 of the Council, Aven Stanley Noah, be taken not to have been elected and orders that either Mr Day be taken to have been elected or that a new election for the division be held. The Elisala application seeks a declaration that the candidate declared to have been elected for Division 2 of the Council, Joel George Gaiden, be taken not to have been elected and (there apparently having been no other candidate) that a new election for the division be held. [5] Each of the applications relies upon factual allegations that each of the persons who were declared elected did not meet a requirement of having lived in the relevant division for the two years immediately preceding their nomination date. That requirement is in s 152(3) of the Local Government Act 2009 which provides: ―152 Qualifications of councillors … (3) A person is qualified to be another councillor of the Torres Strait Island Regional Council only if the person— (a) is an Australian citizen; and (b) is a Torres Strait Islander or an Aborigine; and (c) on the nomination day for the election, has lived in the particular division for which the person is to be a candidate for the 2 years immediately before the nomination day; and (d) is not disqualified from being a councillor because of a section in this division.‖ (emphasis added) [6] That provision is referred to in the Local Government Electoral Act 2011 (―LGEA‖), under which the applications are brought, where s 26 relevantly provides: ―26 Who may be nominated (1) A person may be nominated as a candidate, or for appointment, as a councillor only if the person is qualified to be a councillor under the—… (b) for a councillor of another local government—Local Government Act 2009, section 152.‖ (emphasis added) [7] In summary the applications are advanced on the basis that if a person declared to have been elected was not qualified to be a councillor and therefore was not lawfully nominated that person should be taken not to have been elected. -- 3 of 11 -- Provisions conferring jurisdiction [8] As to this court’s jurisdiction to preside, s 137 (1) of the Electoral Act 1992 (Qld) provides the Supreme Court is the Court of Disputed Returns for the purposes, inter alia, of the LGEA. [9] In the LGEA, pt 7, ―Disputed results‖, makes provision at s 136 for the election of a person under that Act to be disputed by application to the Court of Disputed Returns: ―136 Local government election may be disputed under this part (1) The election of a person under this Act may be disputed by an application to the Court of Disputed Returns under this part. (2) The election may not be disputed in any other way.‖ [10] The meaning of ―application‖ as referred to in s 136 is defined at s 135: ―application means an application about disputing an election under section 138.‖ [11] Section 138 provides for the content and filing of the application to the Court of Disputed Returns, stipulating, inter alia, that the application must ―state the facts relied on to dispute the election‖ and must be filed within seven days of the election. [12] Section 142 provides for the hearing of the application: ―142 How application is to be dealt with by the court (1) The Court of Disputed Returns may conduct hearings and other proceedings for an application. (2) The court is not bound by technicalities, legal forms or rules of evidence. …‖ [13] The powers of the court on such an application are broad: ―144 Powers of the court (1) Subject to sections 145 and 146, the Court of Disputed Returns may make any order or exercise any power relating to an application that the court considers just and equitable. (2) The orders may include any of the following— (a) an order to the effect that a candidate elected at an election is taken not to have been elected; (b) an order to the effect that a new election must be held; (c) an order to the effect that a candidate, other than the one elected at an election, is taken instead to have been elected; (d) an order to dismiss or uphold an application in whole or part.…‖ The litigation of the applications to date [14] The applications first came before Daubney J, sitting as the Court of Disputed Returns in Brisbane and His Honour made various orders including a -- 4 of 11 -- requirement that there be an exchange of outlines of argument. The matter was later transferred to Cairns to be heard before me sitting as the Court of Disputed Returns. [15] At my review of the matter on 11 July 2012 it was noted that the outline of submissions by counsel for the second respondent in the Bero application advanced an argument that the Court of Disputed Returns did not have jurisdiction to hear the application. The reasons advanced, if correct, would logically apply equally to the court’s jurisdiction to hear the other two applications. [16] Against that background, any preliminary argument as to jurisdiction in any of the three applications was listed to be heard before me on 30 July 2012, the day before the substantive hearing of the Bero application was listed to proceed. [17] In the upshot all parties to the Bero application made submissions on the jurisdictional issue, as did the applicants and first respondent in the Day and Elisala applications. The second respondents in the Day and Elisala matters appeared, as was appropriate, but made no substantive submissions, indicating in the course of oral argument that they did not wish to adopt the argument against the court’s jurisdiction advanced by the second respondent in the Bero application. The submission against jurisdiction [18] Counsel for the second respondent in the Bero application submits the Court of Disputed Returns has no jurisdiction to determine the application because the dispute in the application is not about an election (―the submission against jurisdiction‖). [19] He urges a narrow interpretation of the meaning of ―election‖ in s 136 of the LGEA, citing the following definition of ―election‖ in the Shorter Oxford Dictionary: ―1. The action of choosing for an office, dignity or position; usually by vote. The choice by popular vote of members of a representative assembly e.g. The House of Commons 1648. 2. The exercise of deliberate choice …the faculty of discriminative selection.‖ The true effect of the narrow interpretation urged is to limit the meaning of election to the process immediately connected with the polling day, that is, the election, and its outcome. That narrow interpretation would seemingly confine the meaning of election to the process of casting and counting votes and announcing the result thereof. [20] Counsel for the second respondent in the Bero application submits the application is not about disputing an election or even whether the second respondent was properly nominated for election. Rather, it is submitted, the application is about the second respondent’s qualifications to be a councillor at the time of nomination and whether the second respondent is disqualified from being a councillor. -- 5 of 11 -- Discussion [21] The submission against jurisdiction is inconsistent with the plain and ordinary meaning of the language of s 136(1) of the LGEA. [22] Section 136(1) provides: ―The election of a person under this Act may be disputed by an application to the Court of Disputed Returns under this part‖. (emphasis added) [23] As the underlined words demonstrate, the dispute to which the application to the Court of Disputed Returns relates is ―the election of a person under‖ the LGEA. Those words militate strongly against limiting the dispute that the Court has jurisdiction over to a dispute about the election in the narrow sense that an election merely involves the casting and counting of votes and announcing the result of that process. [24] An election necessarily includes an outcome, viz, the election of a candidate. There is nothing in the language of s 136(1) to suggest a dispute about the candidate’s election ought be limited solely to the immediate processes giving rise to that election by way of the casting and counting of votes, as distinct from the other earlier processes giving rise to it, such as the nomination of the person as a candidate. [25] If, as is the allegation here, a person should not by law have been nominated as a candidate, then that person should not have been a candidate and thus should not have been elected. On the face of it a dispute about such a person’s election is a dispute about the ―election of a person‖ under the LGEA. It is a dispute about that person’s election because it is alleged that person should not have been elected. It is a dispute that on the plain and ordinary meaning of s 136 of the LGEA is properly the subject of an application to the Court of Disputed Returns.1 [26] Counsel for the second respondent in Bero advanced a number of arguments against adopting the apparently plain and ordinary meaning of s 136. The heading argument [27] It was submitted the narrow interpretation of s 136, relied upon for the submission against jurisdiction, is supported by the heading of pt 7, ―Disputed results‖. [28] However, that heading no more suggests than s 136 does, that the dispute about the election results is confined to the legitimacy of the immediate process of 1 While not critical to the above conclusion that the narrow interpretation urged is wrong there were some other aspects of the LGEA referred to in argument in support of that conclusion. Section 26 falls within Div 2 of Pt 4 of the LGEA. That is, it falls within the part of the LGEA which sets out the process of how a local government election is to be conducted. That is consistent with nomination being part of the process of ―election‖. Further, one of the orders which can be made under s 144 is an order that an elected candidate is taken not to be elected. This is the very order which would flow from a finding that a successful candidate should not have been elected because the person was not qualified for nomination for election. -- 6 of 11 -- casting and counting of the votes that lead to the announced results, as distinct from the legitimacy of the earlier processes giving rise to the results, such as the nomination of the candidate announced in the results as elected. As with the words of the section, the words of the heading do not bespeak a confinement of the dispute about the election results to a dispute about the legitimacy of only part of the process giving rise to those results. The certification argument [29] It was submitted, in effect, that there can be no dispute about the legitimacy of a person’s nomination unless it goes to the matters which the returning officer must be satisfied of in order to certify the nomination pursuant to s 31 of the LGEA, which provides: ―31 Certification of nominations (1) If the returning officer is satisfied a person has been properly nominated for an election, the returning officer must— (a) certify the nomination in the approved form; and (b) give a copy of the certificate to the person. (2) The certificate must state the time, day and place proposed for a draw, if necessary, for the order of listing of candidates’ names on the ballot paper. (3) For subsection (1), a person is properly nominated for election if— (a) sections 27 and 39 have been complied with, or have been substantially complied with apart from a mere formal defect or error in the nomination; and (b) section 29 does not apply to the person’s nomination; and (c) the nomination has not been withdrawn. (4) Also, the returning officer is not obliged to look beyond— (a) the form of nomination and payment of the deposit; and (b) the voters roll; and (c) documentary evidence produced by the nominee or nominator that at the time the voters roll is compiled for the election— (i) the nominator is an elector for the election or the registered officer of a registered political party; or (ii) the nominee is, under the Electoral Act 1992, an elector for an electoral district, or part of an electoral district, included in the local government’s area. (5) If a nomination is wrongly certified by the returning officer, the certification, or the issue of a copy of the certificate, does not validate the nomination.‖ (emphasis added) [30] None of the sections that must be complied with in s 31(3), for the purposes of the returning officer being satisfied of a proper nomination in s 31(1) and therefore certifying the nomination, actually relate to the qualification of the person to be nominated. Section 27 makes provision for who may nominate the -- 7 of 11 -- candidate and how. Section 29 precludes nomination as both mayor and councillor or as councillor for more than one division. Section 39 requires the paying of a deposit on nomination. As long as these provisions are complied with then that will be sufficient for the returning officer to be satisfied the nomination must be certified. [31] It was submitted that a person is ―properly nominated‖ as a candidate if the requirements of s 31(3) are met. The suggestion seemed to be that the certification of the nomination, which must follow from compliance with the limited requirements of s 31(3), is somehow completely determinative of the legitimacy of the nomination. [32] It was emphasised in this context that the LGEA’s dictionary defines ―candidate‖ as a person whose nomination for election as a councillor has been certified by the returning officer under s 31(1)(a). However the fact that certification is a requirement of eligibility to be a candidate in an election does not mean certification can legitimise an otherwise unlawful nomination. There is no provision in the LGEA by which a person’s candidature is deemed legitimate by certification regardless of whether the person’s nomination is otherwise contrary to the Act. [33] Compliance with s 31(3) merely means a person is ―properly nominated‖ for the limited purpose of the returning officer certifying their nomination per s 31(1). [34] If a person could be legitimately nominated merely by satisfying the narrow requirements for certification in s 31 then no purpose would be served by the strict requirement of s 26 that a person may be nominated as councillor ―only if‖ qualified under s 152 of the Local Government Act 2009 (Qld), a qualification which requires the nominee to have lived in the division for the preceding two years. [35] It appears likely that by not making s 26 one of the matters the returning officer ought be satisfied of for certification the legislature was not intending to render s 26 otiose but was merely refraining from imposing a potentially demanding investigative and or inquisitive role upon the returning officer. The judicial review argument [36] In apparent anticipation of the point that s 26 of the LGEA, which adopts the qualification requirements of s 152 of the Local Government Act 2009 as a pre- requisite for nomination, would be otiose unless there exists some means of ensuring it is complied with, counsel for the second respondent in the Bero application placed emphasis upon the availability of the option of judicial review. However this was at best an argument that s 152, as distinct from s 26, would not be otiose. [37] Counsel referred in particular to s 157 of the Local Government Act 2009, which provides: ―157 Judicial review of qualifications (1) Any person who is entitled to vote in a local government election may apply for a judicial review of the eligibility, or -- 8 of 11 -- continued eligibility, of a person to be a councillor on the basis that the person is disqualified under this division. (2) This section does not limit the Judicial Review Act.‖ (emphasis added) [38] The effect of s 157 is to give standing to an elector to judicially review the eligibility or continued eligibility of a person to be a councillor on the basis the person is disqualified under the Act in Ch 6, Pt 2, Div 1, ―Qualifications of councillors‖. That division commences with s 152, which stipulates certain requirements for a person to be qualified to be a councillor. In the main they are positive requirements, for instance the requirement the person must have lived in the division for two years immediately preceding the nomination. However they also include a requirement the person: ―(d) is not disqualified from being a councillor because of a section in this division‖. [39] The ensuing provisions of the division, from s 153 to and including s 156A then identify various facts which disqualify a person from being a councillor, such as conviction of certain offences, bankruptcy or election to the Commonwealth or State parliaments. Section 156A effectively disqualifies a person from being a councillor if the person does not live in the local government area. None of those disqualifying provisions after s 152 contain the requirement of having lived in the division for two years prior to nomination. [40] It appears likely that s 157 gives standing to apply for judicial review of a person’s eligibility to be a councillor, whether before or after that person’s election, on the basis the person is disqualified under any of ss 153 to 156A. Counsel for Mr Bero submitted that basis also extended to an argument the person was not qualified under s 152. [41] It is unnecessary to express a concluded view on that more controversial submission as it is of no consequence to the present jurisdictional issue. If it is wrong then that detracts from the argument there is another means of enforcing compliance with s 152. However it hardly assists the submission against jurisdiction if it is correct that an applicant with standing under s 157, or for that matter with standing otherwise under Pt 5 of the Judicial Review Act 1991, can seek judicial review of a person’s eligibility to be a councillor on the basis the person did not live in the division for two years preceding nomination. Why should that preclude the dispute of the election of that person before the Court of Disputed Returns on the basis the person should not have been elected because the person was not qualified to be nominated by reason that that the person did not live in the division for two years preceding nomination? Two points warrant emphasis in explanation that it does not. [42] Firstly, the disputes may relate to a similar argument about legitimacy but they are of a different character. One, the review, challenges the eligibility of a councillor. The other, the application to the Court of Disputed Returns, challenges the election of a person. Secondly, the existence of a right of judicial review does not exclude other remedies.2 2 See s 10 Judicial Review Act 1991. -- 9 of 11 -- [43] If there is any relevant exclusion of remedy in the present context it is s 136(2) of the LGEA which when read with s 136(1) provides the election of a person under that Act may not be disputed in any other way than under Pt 7 thereof, that is, by an application to the Court of Disputed Returns. It is unnecessary to here decide whether that precludes a judicial review of a person’s eligibility or continued eligibility to be a councillor. However it seems unlikely that it would, in that, as already explained, s 136 is concerned solely with interfering with the outcome of the election in its immediate aftermath,3 whereas review issues about a person’s eligibility or continued eligibility to be a councillor may arise over a much broader time span, extending long after the election.4 [44] In any event, even if the above-mentioned arguable pathway to judicial review of non-compliance with s 152 is open, that does not render s 26 of the LGEA any less otiose if the narrow interpretation of s 136 of the LGEA is correct. In short the entire argument about the option of judicial review is immaterial to the present jurisdictional question. Reliance upon the Electoral Act [45] The submission against jurisdiction advanced an argument drawing upon the Electoral Act 1992. [46] It was submitted the Electoral Act 1992 creates a clear distinction between disputing elections and disputing qualifications such that disputes involving questions regarding qualifications ―clearly cannot be dealt with in the way set out for disputing elections‖. It was submitted such an approach should be adopted in interpreting the LGEA. [47] However while the LGEA contains some provisions which are analogous to provisions in that Act, it cannot be said of the LGEA, as counsel said of the Electoral Act 1992, that its provisions clearly provide disputes about qualifications cannot be dealt with in the way set out for disputing elections. [48] Moreover, the present applications have the effect of raising more than a dispute about qualifications. The importing by s 26 of the LGEA of the qualification requirements in s 152 of the Local Government Act 2009 means the applications raise a dispute about the legitimacy of the nomination for election of the person whose election is disputed. The effect of s 26 is that the person should not have even been nominated for election unless qualified under s 152. Significance of provisions about local government elections prior to commencement of the LGEA [49] In support of the submission against jurisdiction reliance was placed, by way of contrast, on relevant provisions applicable prior to the commencement of the LGEA, particularly provisions identified by reference to Schedule 2 of the Local Government Act 2009. 3 Section 138(2) LGEA requires the application must be filed within seven days of the election. 4 As to such remedies not being mutually exclusive see the observations of Dawson J in Sykes v Cleary (No. 1) (1992) 66 ALJR 577, 579, which were approved in Sue v Hill (1999)199 CLR 462, [24] – [25], [113] – [114]. -- 10 of 11 -- [50] It is unnecessary to consider this aspect in detail. It is well acknowledged that considerable caution is required in drawing as an aid to interpretation upon prior statutory provisions dealing with the same subject matter as the newer statutory provisions that fall to be interpreted.5 That is particularly so where, as here, a result is contended for which is not apparent on the face of the new provision under consideration. Given the above-identified plain and ordinary meaning of s 136, reference to such material is unnecessary. [51] There is also a flaw in the argument that was developed in reliance upon that material. It was submitted that immediately prior to the commencement of the LGEA, under the former provisions, a person’s qualifications to become a councillor were critical to whether or not the person was properly nominated for election whereas under the LGEA they are not. The foundation for the submission they are no longer critical was said to be that s 31(3) of the LGEA ―now provides that a person is properly nominated in circumstances which have nothing to do with issues of qualification‖. However as mentioned above, the reference in s 31(3) to a person being ―properly nominated‖ merely by complying with ss 27, 29 and 39, is only for the limited purposes of s 31(1), that is, to be certified as nominated. As earlier explained there is no provision in the LGEA by which a person’s candidature is deemed legitimate, merely by certification, regardless of whether the person’s nomination is otherwise contrary to the Act. Conclusion [52] Absent such a provision it follows from the unambiguous requirement of s 26 of the LGEA that a person may be nominated ―only if‖ qualified to be a councillor under s 152 of the Local Government Act 2009, that a nomination in breach of that provision cannot be rendered lawful by certification. It is not a lawful nomination and, logically, a person unlawfully nominated as a candidate for election and who should not by law have been a candidate cannot be lawfully elected. The Court of Disputed Returns has jurisdiction to hear and determine an application disputing the election of such a person. [53] I reject the submission against jurisdiction. The Court has jurisdiction in the three applications. [54] My order is: The Court of Disputed Returns has jurisdiction to hear and determine the applications. 5 See Statutory Interpretation in Australia (6th ed, Pearce and Geddes) p 96. -- 11 of 11 --