Mowen v Commissioner of Police[2025] QCA 8

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  On 26 August 2021 the applicant was convicted in the Magistrates Court at Rockhampton for driving a motor vehicle without a driver licence, repeat offender contrary to ss 78(1) and 78(3)(h) of the Transport Operations (Road Use Management) Act 1995 (Qld).  The applicant was fined $500 and was disqualified from driving for one month.  A conviction was recorded.
2. [2]
   The applicant appealed his conviction to the District Court at Rockhampton pursuant to s 222(1) of the Justices Act 1886 (Qld).  The appeal was heard by his Honour Judge Clarke on 11 April 2022.  His Honour published reasons and dismissed the appeal on 19 April 2022.  The applicant seeks leave to appeal this decision pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).
3. [3]
   The sole ground for the application for leave to appeal is that:

“…this is a matter arising under the constitution, judicial activism, and denial of natural justice, this is a matter which puts a state act overruling a Commonwealth Act, this is contrary to Constitution of the Commonwealth of Australia section 109 and under Judiciary Act 1903 section 40 is a decision this is a matter that must be removed to the High Court.”

4. [4]
   The nature of an appeal under s 118(3) of the District Court of Queensland Act was considered by Bowskill J (as her Honour then was) (with whom Fraser and Philippides JJA agreed) in McDonald v Queensland Police Service.^[1]  The Court’s discretion to grant or refuse leave to appeal, whilst unfettered, is exercisable according to the nature of the case.  Leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings.  Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.
5. [5]
   As is apparent from the applicant’s ground, the decision of the primary judge is only sought to be impugned by reference to an asserted constitutional matter.  Neither before the Magistrates Court nor the primary judge did the applicant seek to challenge the fact that, when intercepted by police on 27 December 2020, he was not the holder of a driver licence.  As recorded in his Honour’s Reasons,^[2] the applicant informed police that he knew he was not licenced and that he was deliberately driving so that he could get caught and return to court to argue about the unlawfulness of a previous disqualification of his driver licence.  His Honour further noted:^[3]

“Much of the appellant’s contentions in this appeal relate to his beliefs about a constitutional conflict between the Commonwealth Electoral Act 1918 (Cth) and the Electoral Act 1992 (Qld) about the age a voter becomes eligible, which in turn impacts whether voting is compulsory.  He further argues that because he lives in an isolated location and experiences ill-health, he needs a driver licence, and he is being victimised contrary to s 42 of the Disability Discrimination Act 1992 (Cth).”

6. [6]
   In relation to the present application, the applicant has purported to give a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth).  This notice was not given to the Attorney-Generals of the Commonwealth and of the States (other than the Attorney-General for the State of Queensland).
7. [7]
   To understand the constitutional matter sought to be raised by the applicant, it is necessary to have regard to the following background.
8. [8]
   In 2015 the applicant was convicted for failing to vote at a Federal election in contravention of s 245(15) of the Commonwealth Electoral Act 1918 (Cth).  He was fined $170 and allowed one month to pay the fine.  The applicant unsuccessfully appealed that decision to the District Court and then to this Court.  In Mowen v Australian Electoral Commission,^[4] Atkinson J (with whom Fraser JA and Dalton J agreed), dealt with the following ground of the application for leave to appeal:

“The Commonwealth Electoral Act 1981 age qualification requirements are contrary to the age qualifications expressly stated in the constitution and are therefore unconstitutional.”

9. [9]
   Atkinson J considered that the constitutional matter sought to be raised by this ground was plainly without merit.  Her Honour observed:

“[11] One of the arguments appears to be an argument that the Commonwealth Electoral Act 1918 (Cth) is unconstitutional. This argument is based on the applicant’s interpretation of s 34 of the Commonwealth Constitution (the Constitution) which relevantly states:

‘Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:

1. he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector…’

[12] The respondent has identified that the applicant’s core argument seems to be that s 93 of the Commonwealth Electoral Act, which relevantly provides that a person who is 18 years of age and an Australian citizen shall be entitled to enrolment to vote, is inconsistent with s 34 of the Constitution and therefore the Commonwealth Electoral Act is invalid in its entirety. There are two problems with this contention. Firstly, if one section of an Act is constitutionally invalid then the normal procedure would be to declare that section unconstitutional rather than to invalidate the entire Act. Secondly, and more importantly, s 34 of the Constitution itself expressly says “until the Parliament otherwise provides”. This section of the Constitution clearly provides that the Commonwealth Parliament can make laws with regard to the qualification to be a member of Parliament and can therefore validly change the age at which a person is eligible to be a member of Parliament. It has done so in s 163 of the Commonwealth Electoral Act and there is no merit in the argument that in doing so the Parliament has behaved in a way that is contrary to the Constitution. Section 30, which deals with suffrage, also contains the expression “until the Parliament otherwise provides” giving the Commonwealth Parliament power to legislate in this area.”

10. [10]
    The applicant has never paid the fine of $170.  This resulted in his driver licence being suspended by the State Penalty Enforcement Registry (SPER).
11. [11]
    On 4 October 2019, the applicant was convicted of driving whilst his driver licence was suspended by SPER (2019 conviction) in the Emerald Magistrates Court.  His licence was suspended for a period of one month.  The applicant considered the 2019 conviction to be “void” and “invalid” for reasons relating to the lawfulness of the earlier conviction of 2015.^[5]  The applicant, however, did not appeal the 2019 conviction.
12. [12]
    The applicant’s s 78B notice identifies the asserted constitutional matter as follows:

“4.Mowen was wrongly convicted in a magistrate's court for failing to vote under the Commonwealth Electoral Act with the stated age qualification that is contrary to the age qualification stated in the Constitution and ultra vires of this state magistrates power.

5. This decision handed down by a state magistrate fails in due diligence, I refer to the matter of King V Jones [1972] HCA 44; (1972) 128 CLR 221 (1st September 1972) this decision addressed the age qualification for, voting·and representing in the elections as stated in the Constitution and confirmed those age qualifications as the full age of twenty one years (21 years).

6. This decision by the magistrate was referred to the State Penalties Enforcement Register, when Mowen refused to pay the fine imposed by this state magistrate in what is clearly a Commonwealth matter, Mowen's driving licence was removed.

7. Mowen has lived in the isolated community of Struck Oil, Queensland, since 1997, there is not now nor has there ever been the availability of public transport in this community, the nearest major town in this region, Rockhampton. is approximately 60 klms from Mowen's residence and the nearest small town Mt. Morgan is approximately 15 klms from Mowen's residence.

8. The question is can a state act (the SPER act) remove protections put in place to protect disability disadvantaged persons (Commonwealth Disability Discrimination Act 1992) and threaten their lives by removing their ability to access medical, food and account payments.”

13. [13]
    In his outline of submissions, the applicant maintains his position that the fine of $170 imposed in relation to his 2015 conviction for failing to vote constitutes “an invalid decision”.  The inconsistency for the purposes of s 109 of the Constitution is identified by the applicant as being an inconsistency between the State Penalties Enforcement Act 1999 (Qld) (SPER Act) and the Disability Discrimination Act 1992 (Cth).  The applicant’s argument is that the operation of the SPER resulted in his driver licence being suspended for his failure to pay the $170 fine.  As he lives remotely, this suspension has affected his access to medical care as well as his ability to purchase groceries.  As the applicant is a long-term disabled person, he asserts that he is protected by the Disability Discrimination Act 1992 (Cth) and is entitled to the guarantees and protections prescribed by this Act.
14. [14]
    The applicant also refers to issues of denial of natural justice and judicial activism.  As became apparent in the course of the applicant’s oral submissions, these assertions are limited to both the Magistrates Court, the District Court and this Court failing to accept the correctness of the decision of the High Court in King v Jones (1972) 128 CLR 221.  This case is, however, only relevant to the issues concerning the Commonwealth Electoral Act 1918 (Cth) which have already been finally determined in Mowen v Australian Electoral Commission.^[6]
15. [15]
    For the reasons which follow, the application for leave to appeal does not involve any matter arising under the Constitution or its interpretation that would necessitate the giving of notices under s 78B of the Judiciary Act 1903 (Cth) to the Attorney-Generals of the Commonwealth and of the States.
16. [16]
    Section 78B relevantly provides:

“(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

2. For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

1. may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

2. may direct a party to give notice in accordance with that subsection; and

3. may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

3. For the purposes of subsection (1), a notice in respect of a cause:

1. shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and

2. is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or the State is a party to the cause.

4. The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.

5. Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.”

17. [17]
    Ordinarily, the Court must not proceed where the requisite notices have not been given to all Attorney-Generals.  This duty is expressed emphatically^[7] such that it “is unqualified by any residual discretion to proceed.”^[8]
18. [18]
    It does not follow, however, from the applicant’s numerous attempts in both this Court and lower courts to assert that there is a constitutional question that there is in fact a matter arising under the Constitution.  In Re Finlayson; Ex parte Finlayson,^[9] Toohey J stated:

“In terms of s 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does.”^[10]

19. [19]
    More recently, the majority of the High Court considered the applicable principles and interplay between s 109 of the Constitution and s 78B of the Judiciary Act in Citta Hobart Pty Ltd v Cawthorn:^[11]

“In order to show that the s 109 issue raised by the appellants was not a “real question”, and in the absence of any improper purpose, it was necessary for Mr Cawthorn to show that the issue was manifestly hopeless. That is a higher threshold than summary dismissal on the grounds that the claim has no reasonable prospects of success. A similar lower threshold to no reasonable prospects is also arguably embodied in the summary dismissal test for whether a claim is “misconceived” under s 99(2)(a) of the State Act.

The same reasoning, denying the existence of a “real question”, can also, unsurprisingly, be seen in the application of s 78B of the Judiciary Act 1903 (Cth), which copies the language of s 76(i) of the Constitution, such that a notice that a cause “involves a matter arising under the Constitution or involving its interpretation” is not required to be issued merely because one party asserts that there is a matter arising under the Constitution.” (emphasis added)

20. [20]
    The relevant matter must “really and substantially arise under the Constitution.”^[12]  Section 78B will not be enlivened where the matter is frivolous, vexatious or an abuse of process.^[13]  Further, “the assertion of a hopeless point characterised as a constitutional point does not attract the operation of s 78B.”^[14]
21. [21]
    The applicant bears the onus of proving that a valid constitutional question has been properly raised.^[15]  Absent any references to specific legislative provisions, the exact parameters of the applicant’s constitutional argument are not entirely clear.  Logically and by reference to the respondent’s outline, it appears that the purported inconsistency attaches to s 42 of the Disability Discrimination Act 1992 (Cth) and division 7 of the SPER Act (in particular, ss 104(2) and 105) such that the SPER Act is constitutionally invalid pursuant to section 109 of the Constitution.
22. [22]
    This submission cannot be accepted.
23. [23]
    Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter prevails and the former is, to the extent of the inconsistency, invalid.  Inconsistency may arise:

1. where there is a direct inconsistency between the Commonwealth and State legislation; or

2. where there is an indirect inconsistency between the Commonwealth and State legislation.^[16]

24. [24]
    Both tests seek to establish “whether a ‘real conflict’ exists between a Commonwealth law and a State law.”^[17]
25. [25]
    This task requires an analysis of the text and operation of both laws to ascertain their proper construction in light of their underlying policy and purpose.^[18]
26. [26]
    The majority of the High Court recently summarised these tests in Work Health Authority v Outback Ballooning Pty Ltd as follows:^[19]

“[29]When a law of a State is inconsistent with a law of the Commonwealth, s 109 of the Constitution resolves the conflict by giving the Commonwealth law paramountcy and rendering the State law invalid to the extent of the inconsistency.

…

[31]In Victoria v The Commonwealth (“The Kakariki”), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd.

[32]The first approach has regard to when a State law would “alter, impair or detract from” the operation of the Commonwealth law. This effect is often referred to as a “direct inconsistency”. Notions of “altering”, “impairing” or “detracting from” the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law.

[33]The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say “completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed”. This is usually referred to as an “indirect inconsistency”. A Commonwealth law which expresses an intention of this kind is said to “cover the field” or, perhaps more accurately, to “cover the subject matter” with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law.

[34]The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.

[35]It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter. It may state a rule of conduct to be observed, from which the relevant intention may be discerned. Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered. A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended. The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation.” (emphasis added)

27. [27]
    A direct inconsistency may manifest in various ways.
28. [28]
    Some examples include:

    1. where obedience of one law constitutes disobedience of the other;^[20]
    2. where one law undermines or divests a right or privilege which the other law confers;^[21] or
    3. where one law is operationally inconsistent with the other law.
29. [29]
    As part of its doctrinal rationale, s 109 operates to safeguard individuals against the injustice of being subjected to valid yet inconsistent Commonwealth and State laws.^[22]
30. [30]
    It is not the case that the power of the SPER registrar to suspend an enforcement debtor’s licence subjects an individual to such an injustice.  There is no provision in the Disability Discrimination Act 1992 (Cth) which directly or indirectly addresses the suspension of a licence.  Simply put, the Disability Discrimination Act 1992 (Cth) does not confer any rights on the applicant which the SPER Act purports to take away.
31. [31]
    The issuance of a licence suspension does not prevent compliance with nor constitute victimisation for the purposes of s 42 of the Disability Discrimination Act 1992 (Cth).
32. [32]
    The suspension is a lawful, temporary measure, revoked upon payment of the outstanding fine.  In circumstances where the suspension is not permanent, there is no sound basis to suggest that the SPER Act threatens the applicant’s life “by removing [his] ability to access medical, food and account payments.”^[23]
33. [33]
    To establish an indirect inconsistency, the Commonwealth legislation must evince an intention to ‘cover the field’.^[24]  Both laws must deal with the same subject matter.^[25]
34. [34]
    This test has no application to the present application.  There is no commonality of subject matter between the Disability Discrimination Act 1992 (Cth) and the SPER Act.  Even if the Disability Discrimination Act 1992 (Cth) operated as a complete statement of the law governing the rights of persons living with disabilities, the SPER Act does not attempt to enter this field.  Rather, it addresses an “entirely different” subject area.^[26]
35. [35]
    Irrespective of the test applied, there is plainly no possible inconsistency between the Disability Discrimination Act 1992 (Cth) and the SPER Act so as to give rise to a constitutional cause.
36. [36]
    As the sole ground of the application for leave to appeal concerns the asserted constitutional matter which is manifestly hopeless, it follows that there has been no substantial injustice to the applicant and there is no reasonable argument that there is an error to be corrected.
37. [37]
    The application for leave to appeal should be refused.
38. [38]
    GOTTERSON AJA:  I agree with the order refusing leave to appeal proposed by Flanagan JA and his Honour’s reasons for it.
39. [39]
    DAVIS J:  I agree with Flanagan JA.