- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Day v Electoral Commission Queensland & anor  QSC 270
RON BARNEY DAY
Court of Disputed Returns
Supreme Court sitting as the Court of Disputed Returns
4 September 2012 (ex tempore)
3 & 4 September 2012
ELECTIONS – where candidates must have lived in their division for the two years preceding nomination – whether the elected candidate had complied with this requirement – if not, whether he should be taken to have been elected
ELECTIONS – where the candidate elected is taken not to be elected – where there was only one other candidate that contested the election – whether that other candidate should be held to have been elected or whether a new election should be ordered
Burnett Shire Council & Ors v Galley  QSC 490.
Re Kiwat  2 QdR 531.
Tanti v Davies (No 3)  2 QdR 602.
Local Government Act 2009 (Qld) s 152.
Local Government Electoral Act 2011 (Qld) ss 26, 144.
D de Jersey for the applicant
C Klease for the first respondent (written submissions only, no appearance at hearing)
R Perry SC for the second respondent
MacDonnells Law for the applicant
Crown Solicitor for the first respondent (written submissions only, no appearance at hearing)
Miller Harris Lawyers for the second respondent
HIS HONOUR: The applicant, Mr Ron Day, and the second respondent, Mr Aven Noah, were the only candidates for election as councillors for Division 15 of the Torres Strait Island Regional Council in the local government election held on Saturday 28 April 2012. In the Electoral Commission of Queensland's mapped plan of its divisions, Division 15 is described as Mer (Murray) Island. Some of the affidavit material refers to the island as Mer Island, although the preponderance tends to use the term Murray Island. I will adopt the more common terminology.
Subsequent to the election, the returning officer gave notice that Mr Noah was duly elected. He received 117 votes and Mr Day received 74 votes. Mr Day disputes the election of Mr Noah before this Court of Disputed Returns. He asserts Mr Noah was not qualified to be a candidate because he had not, for the two years preceding the election nomination day, lived in the division, a requirement of qualification contained in s 152(3)(c) of the Local Government Act 2009 (Qld) He seeks an order that Mr Noah be taken not to have been elected and that either Mr Day be taken to have been elected or a new election be held for the division.
This is one of three similar applications arising out of the local government elections in the Torres Strait earlier this year. I have already decided one such application - see Bero v ECQ & Anor  QSC 222). In that matter I engaged in a lengthy analysis of the relevant law, I will here adopt the applicable legal principles identified in Bero without in all respects reciting the analysis again. This matter was, for convenience, heard in conjunction with, though as a separate application, from a third application which is the matter of Elisala v ECQ & Gaidan (4308 of 2012).
Before the hearing of any of the three applications a preliminary point was raised as to whether the Court of Disputed Returns has jurisdiction to hear and determine the application. I ruled that it did (see Bero v the Electoral Commission of Queensland & Anor; Day v Electoral Commission of Queensland & Anor; Elisala v Electoral Commission of Queensland & Anor  QSC 2001 delivered 31 July 2012).
The critical factual issue in the proceeding arises out of s 152(3) of the Local Government Act which provides:
"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 or because of a section in this division”.
To attract this Court's intervention, the applicant must prove that Mr Noah had not lived on Murray Island in the division for which he was to be a purported candidate for the two years immediately preceding 27 March 2012, the nomination day.
In Bero, in interpreting the meaning of section 152(3) and the words, "lived in the...division...for the two years immediately before the nomination day", I had regard, inter alia, to the purpose of the provision and the context in which it appears in the Act. In particular, I noted there is no similar requirement to s 152(3) in s 152(1), which relates to councillors of local governments other than the Torres Strait Island Regional Council.
In Bero I discussed why it may have been such a qualification was imposed on local government in the Torres Strait yet not the balance of the state. I observed:
"On one view the high mobility of those who live in the Torres Strait as between other islands and the mainland would arguably make this qualification more difficult to meet for the Torres Strait Island Regional Council than many other Queensland councils. However, the Torres Strait Islands are remote compared to many other Queensland council areas and it is unsurprising that it is regarded as important that its councillors actually live in those remote islands in order to maintain a properly informed connection with the islands and islanders they represent and maintain a properly informed understanding of the cultural circumstances which have evolved in those remote islands”.
Reflecting that special aspect of the Torres Strait Islands local government area, the explanatory notes in respect of the Local Government Bill 2009 said of this newly introduced qualification:
"These additional qualifications reflect the cultural and other circumstances of this council and the representation by councillors who understand this”.
There of course exists a view contrary to the apparent well intentioned motivation I have just identified, namely that the electorate in whatever division of whatever council area in the State we are concerned with ought be blessed with the wisdom of candidates making their own judgment as to suitability and, in particular, if it be relevant, their knowledge of relevant local circumstances. Be that as it may, it is not my task to consider what are essentially political considerations. I have regard to this topic only for the purpose, as occurred in Bero, of deriving some assistance from the purpose of the provision as an aid to construction of what the words mean.
Text and context
A consideration of the text and context of the provision tends to confirm its purpose is to ensure candidates have actually lived in the division for a prolonged period of time preceding nomination.
I observed in Bero:
"The meaning of “lived” in s 152(3) does not fall to be considered in isolation. Context is important. The words “lived in a particular division for the two years immediately before the nomination day” are all important. They require the person to have actually lived in a geographic sense in the division and done so for the two year period”.
This underscores the need to have regard to the reality of where the person lived and not merely their subjective view of where their place of residence was or where it was they called home.
I referred in Bero to Tanti v Davies (No. 3)  2 Qd R 602 in reasoning towards the conclusion that the critical question must surely be where, as a matter of objective fact, was the nominee living, not where did he want to live.
There may be circumstances during a two year period where a person who lives at one place may be occasionally absent from it, staying elsewhere from time to time during that two year period. Would that mean the person has not lived in the place for two years? The parties in this matter each conceded the requirement of the section ought not be interpreted as requiring physical presence in the division 24 hours a day, seven days a week, 365 days a year. They acknowledged inevitably that some flexibility ought be read into the meaning of the section, at the very least to cater for mere transitory absences of the kind, for example, that might arise during a medical emergency.
The relevance and significance of occasional absences obviously turns upon a question of degree. That much was observed by Holmes J in Burnett Shire Council & Ors v Galley  QSC 490 where her Honour said at paragraph 41:
"While I accept that the word "lives" may not connote the same degree of permanence as "resides", I consider that there must be some element of continuity in a person's occupation of premises for the purpose of eating, sleeping, bathing and carrying on the other activities of everyday life to warrant a conclusion that he or she lives there. It is a question of degree whether a use of premises short of daily occupation is of sufficient proportions to amount to living there."
I respectfully agree.
Duration of absences
An important aspect of the question of degree is, plainly enough, the duration of a person's absence from the place they are allegedly living at. I discussed in Bero the consideration of that aspect by Dowsett J in Re Kiwat  2 Qd R 531. The matter was concerned with residing rather than living at a place, although it was, as here, dealing with a two year requirement.
In that matter his Honour referred also to the approach of Williams J in a matter of Re O'Brien No 6 of 1985, Cairns Registry, judgment delivered 20 March 1985, where there was an absence for all of the six month residency qualification period. In contrast, in Kiwat it was an absence from an island residence totalling about six months over a two year period associated with departures from time to time to go diving for trochus as part of that particular candidate’s calling.
In Bero I observed:
"The differences between this matter and Kiwat are obvious, and are not only that this matter is concerned with living rather than residing somewhere. Kiwat was not away from his island for such a prolonged period as the period of absence we are concerned with here. Further, there was evidence in Kiwat that the absences were temporary and involved no material change to where he was living. Moreover, there were abundant evidentiary indicia of the fact that he was living at the island”.
Those observations are of similar, though not identical relevance here. The total period of absence here is not as prolonged as it was in Bero, although it is plainly more prolonged than it was in Kiwat.
In weighing up the question of degree to be considered in respect of occasional absences, it will be relevant to have regard to the objective indicia in the evidence which reflect the reality of where the person lived as opposed to where they wanted to live (or where they wanted to represent they were living) and to the degree of continuity and permanence in using the place in question for the purposes of eating, sleeping, bathing and carrying on other activities in daily life. A significant but not necessarily determinative consideration will also be the duration of the absences under consideration.
An absence which involves no material change to where the person is living is obviously different from an absence that flows from the fact that someone is in reality living elsewhere. In determining which is which, factors of the kind I have mentioned, provide guidance.
Against that background, it is useful to bear firmly in mind the question of what evidentiary indicia or detail associated with actually living somewhere is present in this case. Such evidence aids in determining the nature or quality of Mr Noah's presence on the island which in turn better enlightens the question of whether or not he was living there, and if so, whether he was living there for the two year period required.
Mr Noah's connection with and time on the island
Mr Noah has a lifelong connection with Murray Island and is one of its clansmen. Born at Thursday Island, he was initially raised on Murray Island. His father's work meant he was schooled in years one to six in Mackay. He returned to Murray Island living with his grandparents for year seven and year eight, the latter year being done by correspondence. He completed his schooling living elsewhere before returning to the island for a few years working as a carpenter and labourer in his late teens. He later ended up completing an access course in Cairns which seemingly led to a career in broadcasting, commencing with the ABC in 1984 in Townsville when he was about 22 or so, followed by a position at Thursday Island with the Torres Strait Island Regional Authority Media and Communication Services Board, where I infer he must have lived for the next several decades of his life.
He there rose to the position of managing director, shunning offers of employment away from the Torres Strait out of a desire to remain close, as he puts it, to "my home, Murray Island”. Over the years, he and his wife would visit Murray Island as much as they could afford to, perhaps six or seven times a year. He wrote and directed a documentary released in 2001 about the Meriam people's struggle for sea rights and was involved between 2000 and 2005 in eight cases with the Mer Gedkem Le Land Dispute Tribunal. His broadcasting job involved hosting a radio talkback show for about an hour a day for five days a week discussing Torres Strait issues including Murray Island issues.
Mr Noah, who is married with four young children, deposes that he has been attempting to relocate his family to Murray Island since 2000, but was prevented by accommodation shortages on the island from doing so until eventually September 2011. He had some land levelled in around 2005 to build a house, but that plan failed after a land title dispute. He lodged an application for housing assistance with the Department of Housing and Public Works and his family was entered in the local house waiting list on 22 September 2009. He describes what seems to have been an increasingly strong desire to return to Murray Island as prompted by the island's generational cultural pull on potential future leaders to return home known as Tamer.
It appears clear he was, with his wife's support, minded to seek election as a councillor for Murray Island and was conscious of a two year requirement he at one point described in evidence as a requirement of residency. Obviously aware the council elections are generally held around March, he took steps, calculated at meeting the two year requirement for the future 2012 election, in mid-February 2010. It is around then that he changed his address on the electoral roll to Murray Island and, as he put it, he “relocated” to Murray Island.
What that actually means is that he stayed at his aunt's home on Murray Island two to three weeks every second month from about February 2010 until September 2011, in the interim returning home to his wife and children at Thursday Island. During September 2011, he and his wife and children moved themselves and much of their belongings into a house on Murray Island made available by Mr Noah's uncle. It is not seriously disputed by the applicant that Mr Noah lived on Murray Island from then until the nomination date of 27 March 2012, some six months or so later. What though of the preceding 18 months?
During that time, he would travel from his home at Thursday Island where his wife and children were, to Murray Island and stay for about two to three weeks every second month. He travelled with just a suitcase and some clothes and some fishing gear and stayed in a small bedroom at his aunt's house on Murray Island. His aunt was, by way of the traditional adoption relationships of the Torres Strait, his adoptive mother. In the ensuing trips, he would just carry his laptop and work documents back and forth, along sometimes with food. He would sometimes take one or two of his children on these trips to ease the home and child-rearing demands on his wife who found this exercise disruptive to the routine of their home life.
His time spent on the island, when there, was directed at involvement in community activity and governance consistent with the plan of he and his wife that he was preparing to run for office in the 2012 local election.
His affidavit lists such activity beginning with his steps to prepare to try and relocate his broadcasting role with his employer - then going by the acronym, "TSIMA” - to Murray Island:
"In or about January and February 2010, I had preliminary discussions with the TSIMA Board about relocating to Murray Island to establish TSIMA on the island using the Remote Indigenous Broadcasting Services (“RIBS”) network as a base.
Proposal was accepted by the TSIMA Board Meeting on 24 March 2010...
On 24 March 2010, I finalised the TSIMA/RIBS training proposal which I had been developing since about 2009 and provided it to the TSIMA Board...
I also discussed this training proposal with the applicant in his capacity as councillor of Murray Island in or about late March 2010 and provided him with a letter outlining the process to be undertaken to establish the TSIMA/RIBS training facility...
On 18 February 2010, I presented a proposal to the community at Beur Village, Murray Island to set up Miriam Tribal Council...As a consequence, the Miriam Tribal Council was established...
On 4 March 2010, I attended an ordinary directors meeting of the Mer Gedkem Le (TSI) Corporation at Meriba EUT...
On 6 March 2010, I was appointed as the secretary of the Mer Gedkem Le (TSI) Corporation...
On 10 March 2010, I attended a meeting of the Komet Tribe on Murray Island...
I...had telephone lines installed in my aunt's house in about May 2010 so I could work remotely from Murray Island...
On 26 May 2010, I attended a meeting to object to the Mer Island Community Club being granted a liquor license (sic)...
In around mid 2010, I wrote a joint paper discussing the infrastructure on Murray Island post Mabo. The paper was presented at the 2010 Native Title Conference on behalf of the Mer Gedkem Le (TSI) Corporation on 2 and 3 June 2010...
On 23 July 2010, I completed a certificate IV in training and assessment at the TAFE Campus on Thursday Island so I could provide training under the TSIMA/RIBS proposal.
I participated in the regional review of the Prescribed Bodies Corporate conducted by Joanne Lamden on Murray Island from 6 September 2010 to 10 September 2010.
During 2011, I attended several meeting with the Department of Education Prescribed Body Corporate and Torres Strait Regional Council about the construction of a new school on Murray Island.
On 12 May 2011, I attended a community meeting on Murray Island to discuss revoking the reserved status of land on Murray Island...
In or about June or July 2011 I attended a second community meeting where it was unanimously decided that the reserved status of the subject land would be revoked and the land would be handed over to the Mer Gedkem Le (TSI) Corporation.
On 28 August 2011, I attended a deputation as a representative of the Mer Gedkem Le (TSI) Corporation with the Minister for Family Services at a community cabinet meeting on Thursday Island".
Against that background, and whatever the outcome of this proceeding, it cannot be doubted Mr Noah not only has a longstanding connection with Murray Island, but that he involved himself with some vigour in more recent times in island activities and island governance. It is little surprise that such connection, such activity, and perhaps his pre-existing platform of eminence and presumably popularity from his broadcasting role saw him attract a winning proportion of a popular vote when the council election was held, and motivates significant community support for his position in this application as exhibited in a document rather like a petition at Exhibit ASN5 to his affidavit.
The obviously pre-prepared proposition of fact to which the petitioners ascribed their signature was as follows:
"We the undersigned residents of Mer Island confirm that we have seen Komet clansman Aven S. Noah physically residing on Mer Island within the 2 year period prior to 16 March 2012. We have seen him on many occasions at home, down the beach and in the dinghy fishing, at his family member’s homes, at the IBIS store, the Canteen, at the School, at Mer Gedkem Le office, at TSIRC office, at the Church, at family/church fundraising functions, family meetings, taking part in cultural activities including burial ceremonies, tombstone openings, first shaving tea, birthday parties and actively taking part in community meetings and major events and celebrations. His wife and children moved out late last year to join him and they currently live at Emar Keper Zomered village (Fr. Simeon Noah's place)”.
It will be noted that form of words focuses upon the matter of the question of fact of whether Mr Noah was physically residing on Mer Island within the two year period. There is no doubt whatsoever on the evidence that for various periods of time he was physically on the island, and stayed overnight on the island. It will be appreciated though that the exercise currently being undertaken is two steps removed from the proposition discussed in that exhibit.
The first step removed is that the concern here is a test not of residence, but of living in the place, concepts which to the lay person may now sound the same, but in respect of which there are legal differences of the kind discussed by me in Bero. Secondly, the exercise in determining whether or not Mr Noah was living on the island for the two years preceding his nomination must have regard, of course, to matters of fact, but ultimately it is a matter of applying what as a matter of law the requirement that he have lived in the division for the two years preceding nomination means in its application to the facts.
Indeed, were I to decide this matter without looking to the substance rather than the label used, I would give more weight than I am inclined to to the contents of ASN13 to Mr Noah's affidavit, a transcript of a meeting he attended on 26 May 2010 relating to a club licence application and objections. That transcript records him as saying in page 50 of the exhibits, inter alia:
"I come from that level of - from the community, and not so much that I live here extensively but you know, from outside...And I don't live here, so I'd like to mention this from the outset”.
It would be unfair to Mr Noah to interpret what he said on that occasion as being a comment made informed by the legal meaning to be given to the section I am now dealing with that requires him to have lived there for the two years preceding his nomination. It is a good example of the need to look to the facts and not to the badge that witnesses seem to give those facts. I observe, though, of what he did say in that transcribed meeting, that his explanation for it, namely that he wanted to downplay his position for tactical reasons in the meeting, had the ring of truth to it. Equally, so too did his description in the lay sense that he did not live at the island because the reality is on his own evidence that for much of the time he was still back at Thursday Island living.
Counsel before me made a number of other submissions of an essentially forensic character, which I do not propose to recite, because there is largely common ground as to the facts that are critical.
The applicant does not particularly take issue with the notion that during the two years prior to the nomination date Mr Noah was from time to time physically present on the island and involved in community activities. As already mentioned, for the last six months of the relevant period it is not disputed he was living there or that in the 18 months before that he was there on occasion. The dispute is that he was not living there for the whole of the two year period.
For the 18 month period from 27 March 2010, at best for him on the evidence, he stayed on Murray Island two to three weeks every second month, averaging two to three weeks at two and a-half weeks. That two and a-half weeks for nine of the 18 months would give rise to a total of 22 and a-half weeks or about five and a quarter months during the 18 month period when he was present on the island. As a matter of mathematics, that equates to a total of 11 and a quarter months during which he was present at the island during the whole of the relevant two year period.
It was submitted against him that on the face of the phone records it is likely he was, particularly in the 18 month period that we are principally concerned with in this case, on the island even less than his evidence and that of his wife suggested. There were telephone records tendered during his evidence. An analysis of those phone records was provided by way of supporting submission(...Exhibit 9).
The analysis of the phone records is indicative of the proposition that for the total 227 days, or more particularly nights, it covers, the phone records suggest he was present at Murray Island for 48 nights, at Thursday Island for 221 nights and at sundry other locations for small periods. The proportion of the days, namely 221, compared to 48, it is suggested, is more likely to realistically reflect the true proportion of time that he was at Thursday Island compared to Murray Island. That would be an even less favourable proportion of time than that that I have referred to in the evidence already.
I am not prepared to act on that less favourable interpretation for the reason that the phone records do not include phone records for all of the months during the period with which I am concerned. Bearing that in mind, and the prospect that Mr Noah may well have had an explanation for the records that are available, which he was not given an opportunity to provide, it seems that the better evidence is the estimate that he would stay for two to three weeks at a time every second month at Murray Island for the 18 month period with which we are concerned in this case prior to the final six months which is not particularly in issue.
I have to say though that conclusion does not give rise to a material change in my overall view of the facts. The reality is that even at best for Mr Noah, that during the 18 month period, he was away from Murray Island for a substantially greater period of time than he was ever there. This is an important consideration, but not determinative. Presence at a place does not necessarily mean a person is living in the place, but a person's presence for only 11 and a-half months in a two year period, is on any view, a poor platform from which to build an argument that a person has lived in the place for two years.
Mr Noah's position is made worse when one has regard to the lack of any substantial evidentiary indicia one might expect were he in truth living at Murray Island for the whole of the two year period. The contrast in the life he led in the final six months compared to the first 18 months of the period also highlights that aspect.
There may of course be cases where a person is living somewhere without significant physical possessions of the kind that most people keep where they live, but even allowing for this potentially being such a case, because of the limited residential space available, physical possession of possessions is not the only potential indicia.
Here, there was certainly evidence of Mr Noah's public life led, as he engaged directly in the activities of community and governance that I summarised earlier, but there was very little evidence of his private life supposedly lived on the island of a kind which would demonstrate that he was indeed living his everyday life at Murray Island, rather than visiting there from time to time to lift his local profile and level of community involvement in preparation for starting to live there later on.
There was, moreover, significant evidence that for much of the period he was actually living at Thursday Island with his wife and children. Those repeated breaches in continuity of occupation at Thursday Island is significant, not merely because of their length, but also because of their character. These were not absences from Murray Island which had any of the indicia of a mere transient temporary absence, for example, because of a need for medical treatment. Transient absences from home like that example are of their nature indicative that the person is temporarily physically absent from the place where they lived. They do not of their character suggest that while absent the person is still not living at their home.
Mr Noah's substantial ongoing presence at Thursday Island is another indicator that he was not as a matter of objective fact living at Murray Island for the two year period with which we are concerned.
This brings me to an argument advanced by Mr Noah's counsel, obviously calculated at overcoming or avoiding the many difficulties I have identified with Mr Noah's maintenance of his position that he was as a matter of objective fact living at Murray Island for the two year period. In Bero, in the course of emphasising the need to focus on the objective reality I observed:
"The approach of considering where, as a matter of objective fact, a person was living during the period in question is plainly consistent with the words and the purpose of the section under consideration here. That purpose is obviously to ensure candidates are not merely nominally connected with the island in the sense they might regard it as their home or even have a place of residence there, but that they actually live there and thereby acquire and maintain a proper and current understanding of the island's cultural and other circumstances."
That observation by me appears to have been at least in part the catalyst for the third of the following three submissions advanced for Mr Noah:
"(a)Continuous permanent residence for two years necessarily satisfies the section but of course does not otherwise establish that the purpose of the section has been achieved (it is assumed, probably wrongly, that the necessary knowledge and connection will arise by reason of that two year period. For example, you may have a situation where a Torres Strait Islander from a different island electorate and tribe but may live on Murray Island for the relevant two year period and thus satisfy the requirements of the section but not actually understand the cultural circumstances of the people of Murray Island). Having Mr Noah describe the extraordinary complex and subtle tribal complexities on Mer, how could it be said that a person from a different Island and tribe could possibly have the requisite understanding. The answer is obviously that he could not but he would still qualify.
(b)A person who does not live on the Island at all may have the necessary connection and understanding but is precluded from qualifying.
(c)An intermediate factual context (that is, not permanent or continuous residence but something else greater than not living there at all) will satisfy the requirement of the section if, objectively considered, the successful councilor (sic) can demonstrate a sufficient connection and understanding based upon or coterminus with the required residency period. In undertaking that consideration one is not confined only to the residency period but facts which support the requisite level of connection and knowledge which arise prior to the relevant qualification period”.
In this context counsel for Mr Noah referred me to Anawak v Nunavut (Chief Electoral Officer)  NUCJ 26, a Canadian case, in particular, at paragraph 89 where the Court observed:
"The A.G. must satisfy the Court that there is a rational connection between the means employed in ss 4, 7 and 11 of the Act and the objectives. She suggests that the 12-month residence requirement in Nunavut ensures that individuals cannot “parachute” into the jurisdiction and elect the representative who will be responsible for answering to local issues. The residency requirement allows the voter to become enlightened with the issues that are of unique local concern and allows residents the opportunity to gain confidence in the integrity and responsiveness of a political candidate."
The third part counsel’s submission above (part (c)) misapprehends, with respect, the recourse to purpose in the exercise of statutory construction.
The critical argument of counsel for Mr Noah appears to elevate purpose as an alternative pathway to the section to a legitimate candidacy when plainly compliance with the section is the only pathway. The reference to purpose in statutory construction is to interpret the meaning of the provision to be construed. Here it is submitted the applicant's circumstances are adequate to meet the purpose which the provision was calculated at achieving, but the issue is whether his circumstances meet the meaning of the provision.
If his circumstances do not meet the meaning of the provision, that cannot be avoided by meeting a separate criterion which is, in effect, that while he does not meet the meaning of the section, he does meet its purpose. The purpose of the provision was achieved by blunt, rather than subtle means. The onerous requirement of living in the division for two years is calculated at ensuring that candidates have lived in the division long enough to know the information about the community which they will need to represent. For better or for worse that requirement must necessarily exclude even those who are potentially outstanding community leaders who may well know the community and its needs, if they have not lived in the division for two years preceding nomination.
My task is to apply the legislation without fear or favour. The evidence which suggests Mr Noah was by the time of his nomination involved in and knowledgeable about community life in the division cannot logically prove that he was, as a matter of objective fact, living on the island for a period of two years prior to nomination. It cannot provide an exception which forms no part of the provision I am required to apply.
I find Mr Noah had not lived in the division for which he was to be a candidate for the two years immediately before the nomination day. It follows he was not qualified under s 152 of the Local Government Act. Since s 26 of the Local Government Electoral Act required that he could be nominated as a candidate only if so qualified, he was thus not lawfully a candidate, and thus not lawfully elected.
In the circumstances, the appropriate course is to order under s 144(2)(a) that he be taken not to have been elected.
The question arises whether or not a new election would be ordered, or whether as the application sought in the alternative, that Mr Ron Barney Day be taken to have been elected.
There were only two candidates in this election. In that respect, the matter is on all fours with Bero and my discussion of the appropriate approach to a two-horse race. I will not now repeat the reasoning I gave there, but it is accepted by Mr Day's counsel that the same reasoning ought be followed here.
In summary, it cannot be inferred the electorate voted with knowledge that there was an issue which might mean that Mr Noah could not lawfully be elected. Nor can it be inferred whether with that knowledge another candidate would have nominated or opposed Mr Day. It follows, in all of the circumstances, that the true will of the electorate is impossible to divine from what has transpired and the best means of giving effect to the will of the people is to allow them to express it at an election and accordingly, I decline that part of the application that sought an order that Mr Day taken to be elected and, rather, will order a new election must be held.
My orders are:
(1)Pursuant to s 144(2)(a) of the Local Government Electoral Act 2011, Aven Stanley Noah, the candidate declared by the first respondent to be elected as the councillor for Division 15 of the Torres Strait Island Regional Council is taken not to have been elected.
(2)Pursuant to s 144(2)(b) of the Local Government Electoral Act 2011, a new election must be held for Division 15 of the Torres Strait Island Regional Council.
The parties having indicated they seek no order as to costs, there is no order as to costs.
- Published Case Name:
Day v Electoral Commission Queensland & anor
- Shortened Case Name:
Day v Electoral Commission Queensland
 QSC 270
04 Sep 2012
No Litigation History