Barron v Townsville City Council [1996] QSC 65

IN THE SUPREME COURT OF QUEENSLAND OS 2519 of 1996 [Barron v. Council of City of Townsville] BETWEEN: JAMES PATRICK MICHAEL BARRON Plaintiff AND: COUNCIL OF THE CITY OF TOWNSVILLE Defendant JUDGMENT - THOMAS J. Delivered: 26 April 1996 CATCHWORDS: ELECTIONS - local government - manner in which council vacancy is to be filled - whether a council is bound to appoint the nominee of a former councillor's political party - construction of s.202(3) of the Local Government Act. Counsel: Mr A.H.J. Morris QC with Mr P.A. Hastie for Applicant Mr N.M. Cooke QC with Mr R.S. Jones for Respondent Solicitors: Prentice, Lawyers for Applicant King and Company (Town Agents) for Respondent Hearing Date: 18 April 1996 -- 1 of 7 -- IN THE SUPREME COURT OF QUEENSLAND OS 2519 of 1996 [Barron v. Council of City of Townsville] BETWEEN: JAMES PATRICK MICHAEL BARRON Plaintiff AND: COUNCIL OF THE CITY OF TOWNSVILLE Defendant JUDGMENT - THOMAS J. Delivered 26 April 1996 These proceedings concern the manner in which the Council is required to fill a vacancy created by the election to federal Parliament of a member of the Council, Mr Peter Lindsay. A poll declaring Mr Linday's membership of the House of Representatives was declared on 22 March 1996, and the Council vacancy has occurred from that date (Local Government Act 1993, ss.170(f) and 200(1)(a)). It is common ground that the vacancy has occurred after the "cut-off date" for a by-election and that the Council is now required to fill the office by appointing another person (s.202(2)). The applicant, Mr Barron, is the State Director of the Liberal Party of Australia (Queensland Division) and contends on behalf of that party that the Council is bound to appoint a liberal party nominee to fill the vacancy, pursuant to s.202(3). The Council, which comprises a majority of Australian Labor Party councillors contends that it is not legally bound to do so, and that the Council is -- 2 of 7 -- 2 entitled to choose any "qualified person". That term is defined to mean any person who is qualified to become a councillor and who has been an elector for that local government for at least thirty days. (Section 202(8)). The answer to the question depends essentially upon the proper construction of s.202(3). It states: "202(3) The new councillor must be - (a) a qualified person; and (b) if the former councillor was, at the last filling of the office, a candidate endorsed by, or a nominee of, a political party - the political party's nominee." In the context of the present case the question is whether Mr Lindsay was "a candidate endorsed by, or a nominee of, a political party" when he obtained office as a councillor in 1994. The applicant concedes that Mr Lindsay was not a nominee of the Liberal Party for the purposes of that election, but contends that he was "a candidate endorsed by" that party at the relevant time. It is necessary to examine other provisions in the scheme provided for such elections under the Local Government Act. Section 250 (1) provides: "250.(1) A person who wishes to be a candidate for election must be nominated by - (a) the registered officer under the Electoral Act 1992 of a political party that has endorsed the person as a candidate for the election; or (b) at least 6 electors for the local government area, or division of the local government area, for which the election is to be held." Prima facie then, a candidate may be validly nominated by either of those methods. Mr Lindsay chose the latter method, that is to say nomination by six electors of the area. There is however a further provision: "Endorsed candidates must identify endorsement -- 3 of 7 -- 3 247. A person whose candidature for election to a local government is endorsed by a political party must include that fact in the form of nomination." The consequences of non-compliance with s.247 are not expressly prescribed. It is possible that non-compliance amounts to an offence under s.204 of the Criminal Code which provides that: "Any person who without lawful excuse . . . omits to do any act which he is, by the provisions of any (public) statute required to do, is guilty of a misdemeanour, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment." Breach of that section carries a maximum penalty of imprisonment for one year. There is no general penalty provision in the Local Government Act 1993, but it is also possible that a breach of s.247 itself amounts to an offence under s.326 which penalises the giving of documents under chapter 6 containing information that the person knows is incomplete in a material particular. However I do not favour the view that either of those consequences ensue. Reading ss.247 and 250 together it is reasonable to think that before a person may be regarded as "endorsed by a political party" for the purposes of the Act, that fact must be included in the nomination form. Such a fact would always be included if a candidate chose the stream offered by s.250(1)(a).It seems to me that a failure by a person to comply with s.247 simply precludes that person from obtaining whatever consequences or benefits that would otherwise flow from compliance with the section. Counsel for the applicant pointed out that s.202(3)(b) is disjunctive and that an endorsed candidate may be nominated either by the party or by citizens. In support of this reference was made to s.271(2)(f). That section deals with the requirements of ballot papers and it prescribes that if a candidate endorsed by a political party was nominated under s.250(1)(a) the ballot paper must have the name of the political party printed adjacent to the candidate's name. It is difficult to think that ballot papers should or could have the relevant political party printed opposite the candidate's name in any other situation. Certainly s.271(2)(f) contemplates the possibility that a candidate may -- 4 of 7 -- 4 choose to nominate other than under s.250(1)(a), but of course if the candidate proceeds under s.250(1)(b), he or she loses the benefit of the party's endorsement being revealed in the ballot paper. Indeed, the central submission of counsel for the respondent is that when a candidate elects to have a nomination go forward under s.250(1)(b), two potential disadvantages result: (1) there will no party endorsement in the ballot paper; and (2) he cannot be regarded as a candidate endorsed by a political party if a vacancy occurs and a new councillor is to be appointed under s.202(3). So read, the Act permits two streams of nomination, but different consequences follow according to which is chosen. Reference was made by each counsel to the second reading speech for the Bill (Hansard 18 November 1993, p.5983-5985) and to the Electoral and Administrative Review Commission Report on the Local Authority Election System of Queensland, September 1990. It is true that in the Minister's speech he stated that "the vacancy is to be filled . . . by a qualified person nominated by the political party that endorsed the member vacating office", but that statement is preceded by the statement that "if a political party . . . endorses a candidate . . . that endorsement is to appear on the nomination form and the ballot paper" (p. 5985). I do not think that these remarks in the end aid either submission. Similarly in the EARC report (at p.73) there is a recommendation that in the last year of a council's term vacancies should be filled "in the case of an alderman or councillor who ran for office as a member of a political party or electoral team, by the nominee of that party or team". However, whatever support the applicant could derive from that statement is immediately cancelled by the following sub-paragraph which says specifically in relation to that situation, "persons nominating for office be required to state their party or team affiliation, if any, on the nomination form". If there is any indication to be gleaned from EARC's recommendations, it is the inference that the nomination form was an integral part of the system that would lead to the retention of party preference in the event of a vacancy. Such a system would avoid disputed factual -- 5 of 7 -- 5 areas on issues such as nomination, candidature and endorsement. However in the end I do not think that the construction of the Local Government Act 1993 is aided by any of the above sources. The material for the applicant shows that he applied to the party for endorsement, was pre- selected by a pre-selection council, was endorsed by the party, acted as a member of the Liberal Party team for the election, and was included as one of the candidates on the Liberal "How to Vote" card as well as in general election publicity. None of this is contradicted, and I reject the submission on behalf of the respondent that the material fails to prove that Mr Lindsay was endorsed by the party. The term "endorse" is not defined in the legislation and it should bear its ordinary popular meaning. The Macquarie dictionary definition includes "(of a branch of a political party) to select as a candidate for an election: He's the endorsed Labor candidate for Bradfield". On the factual level then, I am satisfied that Mr Lindsay was endorsed by the Liberal Party for the purposes of the 1994 election. It does not follow however that in the events which have happened he was a "candidate endorsed by . . . a political party" within the meaning of those words in s.202(3). The chief executive officer is the person charged under the Act with the responsibility (under ss. 203 and 204) of obtaining the new nominee of the political party, if appropriate, or publishing notices inviting nominations from persons qualified, if appropriate. The chief executive officer has to be able to know whether the situation is one that entitles a political party to the benefit of nominating the replacement councillor or not, under s.202(3). The legislation says nothing about any enquiry that the chief executive officer is to conduct, and of course it might not always be a simple factual decision. Adverse interests would demand proof that all steps were duly taken under the party's constitution, and might wish to challenge any necessary proof step by step. The scheme of the Act seems to be to avoid this kind of potentially controversial inquiry, and to provide a mechanism where all a chief executive officer has to do is to check the nomination form -- 6 of 7 -- 6 of the candidate in question to see whether he was endorsed by a political party or not. Counsel for the applicant drew attention to s.15 of the Commonwealth Constitution which was enacted after a referendum in 1977. It deals with the filling of vacancies in the Senate, and gives recognition to what many people thought was an established constitutional convention as to the filling of such vacancies. The language of s.15 is quite general, and would, I think, on evidence similar to that presented in the present case succeed in requiring a nominating body to nominate a member of the same party as the person who vacated the office. The test is that the former member "was publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate". The words of s.15 have been criticised as including phrases that "introduce politics and vague notions into what otherwise purports to be a legal document" (Lane, The Australian Federal System 2nd edn, p.29). It would seem that the exigencies of constitutional amendment called for the statement of a principle in one section where the wording is quite different to the more elaborate and more specific scheme that is spelled out for local government elections under the Local Government Act 1993. My decision is based upon construction, not upon notions of desirable political convention. It was conceded by counsel for the respondent that Mr Lindsay's representation of the Liberal interest in the relevant area would be a relevant matter to take into consideration in filling the vacancy, as would the circumstance that the replacement candidate was nominated by the Liberal party. But those are matters for the Council. My task is to decide as a matter of law whether under s.202(3) Mr Lindsay was, at the filling of the office in 1994, a candidate endorsed by, or a nominee of, a political party. I hold that in the circumstances he was not. In my view if a political party and its endorsed candidate fail to avail themselves of the provisions that require the party's endorsement to be identified in the nomination form, they do not obtain the benefit of being able to insist that a subsequent vacancy be filled on the footing that s.202(3) applies. -- 7 of 7 --