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Sanders v Electoral Commission Queensland[2024] QSC 147

Sanders v Electoral Commission Queensland[2024] QSC 147

SUPREME COURT OF QUEENSLAND

CITATION:

Sanders v ECQ [2024] QSC 147

PARTIES:

SHORNE CHRISTOPHER SANDERS

(Applicant)

v

ELECTORAL COMMISSION QUEENSLAND

(Respondent)

FILE NO/S:

BS4350/24

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland sitting as

Court of Disputed Returns

DELIVERED ON:

11 July 2024

DELIVERED AT:

Bundaberg

HEARING DATES:

17 & 18 June 2024

JUDGE:

Henry J

ORDERS:

  1. Application dismissed.
  2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 1.30pm 25 July 2024, sitting in Bundaberg by videolink from Cairns with out of town parties having leave (on the giving of a day’s advance notice to the Registrar at Bundaberg) to appear in Bundaberg by videolink.
  3. The Registrar at Bundaberg will co-ordinate the availability of a courtroom and the functioning and linking of the videolink(s) for the purposes of implementing order 2.

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – GENERALLY – where the application is made to the Supreme Court sitting as the Court of Disputed Returns – where the applicant lost the electoral division 8 election by one vote – where the applicant seeks orders that the person declared to be elected is taken not to be elected and a new election be held – where the applicant complained there were long queued waiting times which resulted in voters leaving without voting and illegible ballots – where the determinative legal consideration is whether it is just and equitable to intervene – where proof of voters being prevented from voting is not a pre-requisite to intervention – where a breach of the Local Government Electoral Act (Qld) is not a pre-requisite to invention – where there were problems with long queued waiting times – where there were alternatives ways to vote other than at one election booth with an inconvenient long queue – where voters fulfilling their legal obligation to vote involves a degree of inconvenience – where the inconvenience caused by the long queued waiting times was not of a degree in which the Court should intervene – where there is no substance to the alleged problem of ballot illegibility – whether in the circumstances it is just and equitable to intervene

Acts Interpretation Act 1954 (Qld) s 14A

Biosecurity Act 2014 (Qld) s 496

Competition and Consumer Act 2010 (Cth) s 87

Corporations Act 2001 (Cth) s 461

Designs Act 2003 (Cth) s 93

Electoral Act 1992 (Qld) s 136

Family Law Act 1975 (Cth) ss 79, 90SM

Human Rights Act 2009 (Qld) ss 23, 48

Local Government Electoral Act 2011 (Qld) ss 3, 67, 78, 137, 138, 144, 145, 146, 168, 184

Patents Act 1990 (Cth) s 138

Property Law Act 1974 (Qld) s 286

Public Health Act 2005 (Qld) s 454B

Referendums Act 1997 (Qld) s 55

Succession Act 1981 (Qld) s 36

Caltabiano v Electoral Commission of Queensland (No 2) [2010] 2 Qd R 1, cited

Carroll v Electoral Commission of Queensland (No 1) [2001] 1 Qd R 117, cited

HFM043 v Republic of Nauru (2018) 359 ALR 176, cited

Tanti v Davies (No 3) [1996] 2 Qd R 602, distinguished

Turner v King [1992] 1 Qd R 307, followed

COUNSEL:

D William for the applicant

M Hickey for the respondent

SOLICITORS:

Finemore Walters & Story for applicant

Crown Law for respondent

  1. [1]
    Queensland’s local government elections were held on 16 March 2024.  There were long queued waiting times at some polling booths, including in electoral division 8 of the Bundaberg Regional Council.
  2. [2]
    The winning candidate in division 8 was Mr Stephen Cooper.  He beat candidate Mr Shorne Sanders by one vote. 
  3. [3]
    Mr Sanders seeks orders that Mr Cooper is taken not to have been elected and that a new election for division 8 be held, because the long queued waiting times at the division 8 booths caused some voters to abandon the queues and leave without voting.  He also complains some ballot papers were illegible, but there is no substance to that complaint.
  4. [4]
    The evidence does show some voters lost patience with the long queued waiting times and left without voting.  However, for the reasons which follow, that does not justify intervening to order another election.  The result must stand. 
  5. [5]
    The issues in the case may conveniently be considered in the following sequence:
  1. The determinative legal consideration is whether it is just and equitable to intervene.
  2. Proof voters were prevented from voting is not an essential pre-requisite to intervention.
  3. Proof of a breach of the Act is not an essential pre-requisite to intervention.
  4. There were problems with long queued waiting times.
  5. There were alternatives to the inconvenience of waiting in a long line at one election booth at one time of day on election day. 
  6. Fulfilling the legal obligation to vote necessarily involves a degree of inconvenience to the voter.
  7. The inconvenience occasioned by the problem with long queued waiting times was not of such a degree that the court should intervene in the result.
  8. There is no substance to the other alleged problem of ballot illegibility. 
  1. The determinative legal consideration is whether it is just and equitable to intervene.
  1. [6]
    A local government election candidate may dispute an election by applying for orders of the kind now sought by Mr Sanders from this Court of Disputed Returns, per ss 137, 138, 144(2) Local Government Electoral Act 2011 (Qld).  
  2. [7]
    Section 144(1) of the Act confers the court’s power to intervene, providing: 

“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.” (emphasis added)

  1. [8]
    The phrase, “just and equitable”, is commonly deployed by legislatures in conferring a wide judicial discretion.[1]  It was likely adopted here because of the potential breadth and unpredictability of events which may bear upon the legitimacy of an election result.  The legislature having taken that approach, it is not for this court to conjure up limits upon the breadth of the power which are not expressly or impliedly apparent from the text and context of the Act’s language.[2] 
  2. [9]
    It was highlighted in submissions that pursuant to s 14A Acts Interpretation Act 1954 (Qld) the interpretation of an Act that will best achieve its purposes is to be preferred to any other interpretation.  Pursuant to s 3 Local Government Electoral Act 2011 the Act’s purposes are said to relevantly include:
  1. “(a)
    ensure and reinforce the transparent and equitable conduct of elections of councillors of Queensland local governments, including, for example, by minimising the risk of unequal participation in the electoral process and ensuring a fair opportunity to participate in the electoral process; …”
  1. [10]
    In a similar vein, s 48 Human Rights Act 2009 (Qld) provides all statutory provisions must, to the extent possible as consistent with their purpose, be interpreted in a way that is compatible with human rights.  The right to vote is articulated in s 23(2) Human Rights Act as the right to have the opportunity without discrimination to vote and be elected at periodic government elections that guarantee the free expression of the will of the electors.  It was common ground that the relevance of that right to the interpretation of the Local Government Electoral Act would not work any materially different result than interpreting the Act consistently with the above identified purpose of the Act.[3] 
  2. [11]
    It was not submitted that either the human right to vote or the purposes of the Local Government Electoral Act confine the meaning of the words “just and equitable” as used in the Act’s s 144(1).  The above references to equitable conduct of elections, ensuring a fair opportunity to participate in the electoral process, minimising unequal participation and the absence of discrimination in ensuring a fair opportunity to participate in the electoral process are consistent with an expectation that electors should have a fair opportunity to vote. 
  3. [12]
    The expectation that voters should not just have an “opportunity” to vote but a “fair opportunity” to vote is consistent with, and does not narrow, the meaning of what is just and equitable.  In a case where some voters lost patience with long voting queues and left without voting at the time, that expectation presents as an obviously helpful guide in weighing whether it is, as a matter of fact, just and equitable to intervene. 
  4. [13]
    Consideration of what is just and equitable will of course be informed by the nature of the order sought by the application.  Consideration of whether it is just and equitable to vacate an election outcome and order a fresh election should not be confined to what is just and equitable from the sole perspective of the candidate or electors allegedly disadvantaged by the events complained of.  That is because such intervention would have affected the successful candidate and all voters of the electorate, who would be forced to endure a fresh election.  In light of that, it is difficult to conceive of it being just and equitable to intervene and order a fresh election if the events complained of could not have affected the result.  Indeed, the courts have consistently required as a pre-requisite for potential intervention that the events complained of could have affected voting numbers sufficiently to have affected the outcome.[4] 
  5. [14]
    In the present case, is clear on the evidence that more than one person lost patience with the long voting queues and left without voting at that time.  It follows, given Mr Cooper lost by one vote, that the events complained of could have affected the result. 
  6. [15]
    The material arguments of the parties as to whether there are other relevant limitations on the power to intervene, are addressed by considering the next two issues below. For the reasons there given it remains in the present application that the determinative legal consideration is whether, on the facts of this case, it is just and equitable to intervene.

2. Proof voters were prevented from voting is not an essential pre-requisite to intervention.

  1. [16]
    Section 144(1) expressly qualifies the breadth of the court’s power to intervene.   It does so by its commencing language: “Subject to sections 145 and 146”. 
  2. [17]
    Of relevance to the present case s 145 includes these qualifications:
  1. 145
    Restrictions on particular orders
  1. …
  1. (2)
    …[T]he court must not make an order under section 144(2) (other than an order to dismiss the application) –
  1. (a)
    because of an absence or error of, or omission by, a member of the electoral commission’s staff that appears unlikely to have had the effect that a candidate elected at an election would not have been elected;…
  1. (3)
    In deciding whether the requirements of subsection (2) are met, the court must not, if it finds and elector was prevented from voting at an election by absence, error or omission, take into account any evidence of the way in which the elector had intended to vote. …”
  1. [18]
    Section 145’s reference to electoral commission staff is to the staff of the Electoral Commission of Queensland, the entity which conducted the election.  Mr Sanders’ amended grounds complain that the commission, “by employing an insufficient number of issuing officers … thereby caused long queues and delays for voters, … thereby preventing electors … from recording their votes with effect such that the formal result does not represent the free and deliberate choice of the competent electors”.[5] 
  2. [19]
    Mr Sanders’ complaint of insufficient staff is effectively a complaint of the absence of sufficient staff.  That appears to come within the meaning of an “absence of… a member of the electoral commission’s staff”.  Alternatively, the complaint of absence of sufficient staff is a complaint of error or omission by the commission staff responsible for properly staffing booths.  It follows, per s 145(2)(a), that such an absence, if proved, cannot prompt the ordering of a new election if it is unlikely to have affected the result. 
  3. [20]
    That is no obstacle here, where there was a one vote victory and multiple persons appear to have left without voting.  If the alleged absence of sufficient staff “prevented” those persons from voting it could not be regarded under s 145(2) as an absence “unlikely to have” effected the result. 
  4. [21]
    Arguably more problematic for Mr Sanders’ application is s 145(3)’s use of the word “prevented”.  It will be recalled Mr Sanders’ grounds culminate in the allegation the insufficient staff and long queues and delays had the effect of “preventing electors … from recording their votes” (my emphasis).  As will be seen, there was no evidence in this case of actual prevention.  Mr Sanders’ counsel submitted, however, that the court’s interference would be justified even if the long queued waiting times only had the effect of “hindering” or “inhibiting” electors in their attempt to vote.
  5. [22]
    The deployment of the word “prevented” in s 145(3) shows the legislature did not foresee that an absence, error or omission of less absolute consequence – such as mere hindering or inhibiting of voters because of long queued waiting times – was likely to potentially ground an order under s 144.  However, care must be taken not to attribute a significance to the use of the word “prevented” beyond the context in which it is deployed in s 145(3).  It is one thing to conclude, as I have, that the legislature’s language in s 145(3) shows it did not foresee something less than being prevented from voting as a possible factual basis to ground the court’s interference as “just and equitable” per s 144(1).  It is quite another to conclude s 145(3)’s context specific language was intended to generally exclude that possibility as a basis for the court’s interference. 
  6. [23]
    Does s 146, the other section qualifying s 144(1), shed further light on the point?  It relevantly provides:
  1. 146
    Restrictions on particular evidence and inquiries
  1. (1)
    In a proceeding for an application, the Court of Disputed Returns must not take into account evidence by any person that the person was not permitted to vote during voting hours for a polling booth, unless the court is satisfied that, so far as the person was permitted to do so, the person did everything required by this Act to enable the person to vote. …”
  1. [24]
    Section 146(1)’s condition on the court taking into account evidence a person was not permitted to vote, is the court’s satisfaction the person did “everything required” by the Act to enable the person to vote.  The casting of a vote at a polling booth on polling day is described in the Act as an ordinary vote.[6]  Section 70 requires a person purporting to cast an ordinary vote to attend a polling booth during voting hours, give the issuing officer at the booth their full name and address, record their vote on the ballot paper and put it in the ballot box.  It cannot be said such a voter has done everything required if, because of the length or slowness of the queue to the polling booth, the voter leaves before even getting to the issuing officer.  It is tolerably clear s 146(1) is concerned more with the voter who stays and, having attended upon the issuing officer, is in some way not permitted to vote.
  2. [25]
    There is an obvious similarity in the way ss 145 and 146 condition what the court may take into account in determining whether, under s 144(1), it considers it is just and equitable to intervene.  One refers to an elector who was “prevented from voting” and the other to an elector who “was not permitted to vote”.  They are similarly absolute events.  Each involves the denial of the right (and obligation) to vote, not merely the hindering or inhibiting of an attempt to do so. 
  3. [26]
    Again, this suggests the legislature did not foresee a less absolute event, such as being hindered in attempting to vote, was a possibility likely to potentially ground an order under s 144.  However, again, it cannot be positively concluded the legislature’s language in the specific context of s 146(1) was intended to generally exclude that possibility as a basis for the court’s interference.
  4. [27]
    The preferable view is that, if the legislature intended to confine the court’s broad power to intervene to those cases where voters were prevented from voting or were not permitted to vote, it would have expressly conditioned the power to that effect.  It follows that prevention of voting is not a legal pre-requisite to intervention.
  5. [28]
    Such a conclusion is also consistent with the expectation that voters should not just have an opportunity to vote but a fair opportunity to vote.
  1. Proof of a breach of the Act is not an essential pre-requisite to intervention.
  1. [29]
    Counsel for the Commission submitted that proof of a breach of the Local Government Electoral Act is a pre-requisite to be met before the Court considers whether it should exercise the discretion to intervene on the basis it is just and equitable to do so. 
  2. [30]
    That submission was founded upon a line of single-judge authority beginning with the decision of Ambrose J in Tanti v Davies (No 3)[7].  His Honour was there dealing with s 136(1) Electoral Act 1992 (Qld), which was in like terms to s 144(1) Local Government Electoral Act 2011.  After having regard to a number of other provisions in the Electoral Act, his Honour construed s 136(1) to require, as a pre-requisite for the exercise of any power that the Court considers just and equitable, “the determination of a fact or facts going to the validity of the election considered in the light of the statutory requirements to be found in the Act”.[8]  His Honour went on to reason that, if there is invalidity in light of statutory requirements, it is then necessary to determine whether there is good ground for believing that the formal result does not represent the free and deliberate choice of the competent electors.[9] 
  3. [31]
    It was common ground in Carroll v Electoral Commission of Queensland (No 1)[10] that such an interpretation of s 136 should be followed.  The interpretation was also referred to by Atkinson J in Caltabiano v Electoral Commission of Queensland (No 2),[11] although her Honour had no need to consider its validity.  That is because Caltabiano was a case in which the factual allegations complained of would, if made out, have involved contraventions of the Electoral Act. 
  4. [32]
    Giving due deference to the above line of authority, about a like provision to s 144(1), I decline to follow it for two reasons.
  5. [33]
    Firstly, the provisions of the Local Government Electoral Act do not expressly or impliedly provide that there must have been a breach of the Act before the Court’s discretion to exercise the broad power conferred by s 144(1) is enlivened. 
  6. [34]
    Secondly, the notion of there being a statutory breach as a pre-requisite is at odds with the reasoning of the Queensland Full Court in Turner v King.[12]  In that case there had been an apparent deficiency in security of ballot papers before and during a recount by an Elections Tribunal.  The deficiency did not breach the provisions of the Elections Act 1983-1985 (Qld).  However, two members of the court concluded that even without a breach of stipulated statutory safeguards the court could nonetheless interfere in a result if the circumstances of the case support the conclusion a false result may have occurred.[13] 
  7. [35]
    While the Elections Act did not stipulate a just and equitable test for intervention, the reasoning in Turner v King, that a statutory breach does not cover the field of foundations for intervention, remains relevant.  Even if Turner v King is not binding in the present context it is more persuasive authority than the afore-mentioned single judge cases.
  8. [36]
    It was explained by Macrossan CJ, in Turner v King, that statutory requirements dealing with the machinery aspects of elections may still leave scope for debate as to whether the majority of the electorate has or has not had an unhindered opportunity to secure the election of their favoured candidate.[14]  His Honour referred to examples such as a fraudulent counting of votes, intimidation of electors, polling booths failing to open and “other acts or mishaps” which “may have occurred to distort the expression of the majority preference”.[15]
  9. [37]
    In the present context the reasoning in Turner v King translates to the conclusion that, even if the circumstances complained of do not constitute a breach of the Act, it is necessary to consider whether they may have compromised voters’ opportunity to record their vote to such an extent that it is just and equitable to intervene and order a new election. 
  10. [38]
    This makes it unnecessary to resolve whether or not the Electoral Commission breached the Act by not having sufficient staff to allow voters to vote without having to wait in long queued lines on election day.  It cannot seriously be doubted that the Electoral Commission has a statutory obligation to provide sufficient staff to conduct elections.  As much flows by implication from:
  • the returning officer’s responsibility, per s 9(1), “for the proper conduct of the election”; and
  • the presiding officer of a polling booth having the responsibility, per s 11(1), “for the proper conduct of the poll at the polling booth”. 

The conduct of an election and the conduct of a polling booth necessarily requires staff.  The proper conduct of each necessarily requires sufficient staff.

  1. [39]
    A difficulty Mr Sanders would have confronted, had it been necessary to establish a breach of the Act as a pre-requisite to potential interference, was that the Act contains no stipulation as to what number of staff are sufficient for the proper conduct of an election and of an individual polling booth.  It may be inferred that “proper conduct” requires sufficient staff to ensure all voters have a fair opportunity to vote.  But the Act does not stipulate that sufficiency of staffing numbers is to be determined by reference to the speed with which that opportunity must be able to be exercised.  For instance, it does not designate some notional range of tolerance of times within which voters may have to queue in line waiting to vote. 
  2. [40]
    This kind of administrative minutiae is inherently unlikely to be included in an Act. It cannot be derived from the Act and Mr Sanders’ own counsel rightly refrained from contending the court should deem what an acceptable waiting time is.[16]  However, as just explained, it is unnecessary for Mr Sanders to establish that there was a breach of the Act.
  3. [41]
    The real issue is whether the long queued waiting times, to which these reasons now turn, detracted from the opportunity of voters to record their vote to such an extent that it is just and equitable to intervene and order a new election.
  1. There were problems with long queued waiting times.
  1. [42]
    Bundaberg Regional Council has ten divisions.  Division 8 is located in the east to south east of the city of Bundaberg, within the suburbs of Avoca and Branyan.  There were two booths established within it for polling day:
  • the Avoca booth, at the Bundaberg Church of Christ; and
  • the Branyan booth, at Branyan Road State School.
  1. [43]
    The Commission appointed a single returning officer for the Bundaberg Regional Council election.  The Avoca booth had four staff: a supervising officer, a senior issuing officer and two issuing officers.   The Branyan booth had three staff: a supervising officer, a senior issuing officer and one issuing officer.  There were no queue controllers appointed to either booth or indeed any other booths statewide.
  2. [44]
    In determining its election day staffing numbers the Commission forecast the Avoca booth would take 905 votes but it ended up taking 1766 votes.  The Commission forecast the Branyan booth would take 706 votes but it ended up taking 1,401 votes. 
  3. [45]
    The flawed forecast was at least partly a result of reliance upon voter patterns at the 2020 local government elections.[17]  In that era the dawning impact of the COVID-19 pandemic apparently skewed some voters’ usual habits in favour of pre-poll voting. 
  4. [46]
    The result on the 2024 election day at the division 8 booths was long queued voter waiting times.
  5. [47]
    At the Avoca booth, the supervisor observed voting queue times generally ranged from 40 minutes to up to an hour during polling day.  This was the case for most of polling day, although queues reduced late in the afternoon around 5pm when the waiting time reduced to about 10 minutes until the close of polls.
  6. [48]
    Mr Sanders deposed that at the Avoca booth the average wait time (when he was visiting there) was about 40 to 45 minutes.  He saw at least 11 people leave the waiting line at Avoca and walk out without voting, making comments such as “I can’t wait this long”, “I have to go to work”, “I have other things to do” and “I’ll just cop the fine”. 
  7. [49]
    Zac Menhennett, Mr Sanders’ volunteer at Avoca, deposed the average waiting time between 8am and about 3.30 pm was 45 minutes to one hour.  He witnessed at least 10 people leave due to the long lines and waiting times, some making remarks similar to those deposed to by Mr Sanders.
  8. [50]
    Mr Sanders deposed that at the Avoca booth elderly, frail and handicapped voters had to wait in line, as there was no alternate access to enter the polling booth.  The evidence shows the Avoca booth had wheelchair access from a designated wheelchair access carpark.  The booth supervisor placed signs within the vicinity of the polling booth containing his mobile number announcing he could be called by anyone using a wheelchair who needed assistance.  He did not receive any telephone calls requesting such assistance and reported that many electors who used wheelchairs and walkers voted at the Avoca booth on polling day. The Commission’s witness, Mr McGraw, testified a like sign would have been in place near the carpark of the Branyan booth.
  9. [51]
    At the Branyan booth, Adam Harford, another of Mr Sanders’ volunteers, observed voter waiting time was 25 minutes by 9am and over an hour by 10am.  He deposed  a large number of people left without voting due to long wait times, a lot saying they would just pay the fine.  He observed “the person helping with the queue was only as you went inside”.  He departed at 1pm.
  10. [52]
    Dale Hicks, an elector in his 70’s, who had recently undergone a lower leg operation joined a 40 to 50 metre long queue to the Branyan booth in company with his wife at 2.20pm.  He left the line to rest at his car after about half an hour in line.  He and his wife then drove to West State School, one of multiple other voting booths within Bundaberg beyond division 8.  After waiting ten minutes in line there and noting there about 20 persons ahead of them, Mr Hicks deposed, “we had had enough”.  They then approached the lady who appeared to be in charge, gave her their notice forms and asked to be registered as informal.  She agreed to do so.  It is not apparent why, having left the queue and secured the attention of a Commission staff member, Mr Hicks asked to be registered as informal rather than request to be allowed to vote immediately because of his ailment. 
  11. [53]
    An aspect of the case which troubled me, while not part of the application’s grounds, was that the Commission did not have a staff member actively vetting the waiting lines for the elderly and infirm to move them to the head of the queue to vote.  The Commission’s list of persons who failed to vote and sought excusal from being prosecuted does include reference to a 100 year old woman.  However, there is no evidence that the elderly and infirm formed a material component of the voters who apparently abandoned the lines and left without voting.  Moreover, Mr Hicks’ evidence shows it was possible to move out of line and gain the attention of Commission staff.  Further, Mr Sanders’ evidence recounts he assisted multiple voters to the front of the line so they could sit down.  He does not suggest there was any formal or mob resistance to that caring conduct.
  12. [54]
    It is well known that at some electoral booths more than others, and at some times of day more than others, voters can encounter long queued waiting times on election days.  However, I accept queued waiting times of 40 to 60 minutes are unusual, particularly for such prolonged proportions of the day as occurred in division 8 on this election day. 
  13. [55]
    It is obvious these undesirably long queued waiting time were a result of there being insufficient booth staff to promptly process the larger than forecast number of attending voters for substantial proportions of the day. 
  14. [56]
    An indeterminate number of attending voters evidently chose not to persist in waiting in line and were observed to abandon the queues without voting.  However, the only voter who provided direct evidence about their own conduct was Mr Hicks.   It is not possible to know whether, and how many, of the abandoning voters left because they were not disposed to invest more of their time waiting in the line to vote or because they had unavoidable commitments to fulfill elsewhere. 
  15. [57]
    Further, while the rules of evidence do not apply to prevent me having regard to the hearsay attributed to some departing voters, I do not accept what they are reported to have said means they must not have attempted to vote later or elsewhere.  People sometimes  say things they do not mean in frustration, including in frustration at perceived bureaucratic ineptitude, before later calming down and taking a different approach. 
  16. [58]
    It is not apparent what proportion of the voters who apparently abandoned the long queues left their attempt at that and what proportion chose to vote later or elsewhere that day. 
  17. [59]
    That such abandoning voters may have later returned to vote and did vote is entirely possible.  There is no evidence that at either booth the long queued waiting times persisted until the 6pm close of voting so that persons were prevented from voting on election day.  At Avoca the problem of long queues had subsided by 5pm.  The latest evidence of long queues occurring at Branyan was mid-afternoon. 
  18. [60]
    It is also entirely possible that abandoning voters went and voted elsewhere at one of the many other available booths, a short drive away elsewhere in Bundaberg.  Voters are entitled to vote beyond their division at any booths within their local council district.  Notably Mr Hicks went beyond division 8 to West State School and after waiting ten minutes saw there were about 20 people queued ahead of him.  Respectfully, that description is not suggestive of an abnormally lengthy queue of people for an election day. 
  19. [61]
    There is no evidence that the proportion of electors who failed to vote in this election was abnormal in comparison to past elections.  That is consistent with the real possibility that a material number of the apparently abandoning voters did end up voting later or elsewhere.
  20. [62]
    Notwithstanding these considerations I am prepared to infer that at least some of the voters who appeared to abandon voting lines at the Avoca and Branyan booths did not vote later or elsewhere.  It follows Mr Sanders has proved some division 8 voters made a single attempt to vote on election day but abandoned their attempt because of the problem of long queued waiting times.  It does not follow that means it is just and equitable to intervene and order a fresh election.
  1. There were alternatives to the inconvenience of waiting in a long line at one election booth at one time of day on election day.
  1. [63]
    Division 8 voters had a wide array of choices as to when and where to vote. 
  2. [64]
    Division 8 voters who chose to vote on election day were not required to vote within division 8.  They could vote in any of the multiple booths a short drive about Bundaberg beyond their own division.  Further, booths were open between 8am and 6pm – a long temporal window. 
  3. [65]
    Moreover, voters who chose to vote on election day but were also working on election day were entitled, pursuant to s 184 Local Government Electoral Act 2011, to two hours absence from work in order to vote.
  4. [66]
    The temporal window within which voters could vote was in fact much longer than the long period on election day.  Early voting opened on the Monday week preceding election day week so that voters effectively had the opportunity of voting for two working weeks prior to election day.  There was an early voting centre in Bundaberg as well as in nearby Bargara.
  5. [67]
    Voters had the unfettered entitlement to vote pre-poll, not needing to have any justifying reason for doing so.  That entitlement was publicised by the Commission in advance.  Further, early voting has been a known feature of local government elections for well over a decade. 
  6. [68]
    Other voting options included postal voting and telephone voting for eligible electors. Declared institution voting is available to voters in some residential care facilities.  Electoral visitor voting is available to eligible electors, such as the infirm or disabled.
  7. [69]
    The significance of all this is that in weighing whether it is just and equitable to intervene it is relevant to consider whether voters had a fair opportunity to vote. 
  8. [70]
    True it is, voters were not obliged to take up the various alternative means of voting other than braving the well known inconvenience of having to wait in potentially long queues at an election booth on election day.  True it is, long queued waiting times persisted for a greater proportion of this election day than would have been expected and planned for by some voters who chose to vote on election day.  But they were not deprived of a fair opportunity to vote in circumstances where the option of voting before election day was open to them and even on election day it remained open to them to seek out alternate booths or return and vote when queue lengths had subsided. 
  1. Fulfilling the legal obligation to vote necessarily involves a degree of inconvenience to the voter.
  1. [71]
    Against this reasoning some voters might say that having planned to do other things on their Saturday it was too big an inconvenience to their lives to have to adjust their plans because of the unexpectedly long queued waiting times.  It would be a curious outcome to require a fresh election because some voters found it too inconvenient to exercise their fair opportunity to vote.  That would scarcely be just or equitable to the voters who exercised their fair opportunity to vote in this election, despite the inconvenience of doing so. 
  2. [72]
    It would also overlook that voting is not merely a right in our democracy, it is a legal obligation.  Section 168(1) Local Government Electoral Act 2011 makes it an offence to fail to vote at an election without a valid and sufficient excuse.
  3. [73]
    Fulfilling the legal obligation to vote necessarily involves a degree of inconvenience to the voter.  Of course, the greater than usual degree of inconvenience involved in voting on this election day was regrettable.  Of course, those obliged to administer elections should strive to avoid inconvenience to voters of the degree which occurred on this election day.  But it remains that inconvenient or not, voters were obliged to vote. 
  4. [74]
    Another example of the imposition which the modest price of citizenship in our democracy carries is jury service.  Those summonsed for jury service, who are not excused for good cause, incur much greater inconvenience in their lives than voters confronted with unexpectedly long queued waiting lines on election day.  They are repeatedly required to attend court.  Even if not selected for the onerous task of  serving on a jury they will regularly have their days inconvenienced by having to attend court and wait for long periods until the selection process has concluded.  There will invariably be occasions when the degree of inconvenience could be mitigated by better administration of the process.  However, a regrettable degree of inconvenience does not remove the obligation of jurors to meet their legal obligation to serve, any more than a regrettable degree of inconvenience to voters on election day removes their legal obligation to vote.
  1. The inconvenience occasioned by the problem with long queued waiting times was not of such a degree that the court should intervene in the result.
  1. [75]
    None of this is to suggest that there might not be circumstances in which the result of understaffed elections is so extreme as to deprive voters of a fair opportunity to vote.  An illustrative, extreme example posited by Mr Sanders’ counsel is that a corrupt administration might deliberately cause under-staffing of some voter booths to deter voter turnout in a way favourable to an incumbent.  But this case is well removed from that extreme scenario.  The understaffing on this election day was obviously not deliberate and there is not a skerrick of evidence to suggest it was likely to have been to the specific benefit or disadvantage of any candidate. 
  2. [76]
    The present application effectively contends as a matter of degree that the unexpectedly prolonged queued waiting times so inhibited or hindered voters attempts to vote that the formal result does not represent the free and deliberate choice of the competent electors.  The evidence does not bear that contention out. 
  3. [77]
    Bearing in mind that voting is a legal obligation and that those voters seen to at times abandon booth voting queues had fair opportunity to vote other than at those booths at those times, it would not be just and equitable to intervene to set aside the election result and order a fresh election. 
  1. There is no substance to the other alleged problem of ballot illegibility.
  1. [78]
    Mr Sanders’ other purported ground for intervention derives from 48 ballot papers used to record the votes of electors having been printed on the wrong side.  This was evidently the inadvertent consequence of voting paper being fed into a printer the wrong way round.  It had the consequence that the side of the paper to be endorsed by the voter appeared on pages with a background security pattern which made it more difficult to read them than had they been printed on the correct side.
  2. [79]
    It was contended that because of the impact upon legibility of the pattern some voters may have struggled to read and understand the ballots or perceived the ballot was unofficial.  In fact only two of the votes appear informal – one contains no endorsement and the other is endorsed with a lightning bolt squiggle near the base.   Of the balance, 23 contain votes favouring Mr Cooper and 17 favouring Mr Sanders.  The writing on the ballots does not bespeak misunderstanding of how the document was to be endorsed with the voters’ choice.
  3. [80]
    In any event, as I observed in open court in perusing the exhibited ballots, the typed writing on the ballots was clearly legible.  They were not exceptionally difficult to read, as was suggested by one deponent, who grossly overestimated the number of ballots issued in this format.  Further, no one issued with such a ballot paper has deposed to experiencing a legibility problem. 
  4. [81]
    Persons with sufficient sight, including aided sight, to read documents in the normal course, could read the ballots.  At worst the security pattern background may have caused such persons to read the document a little slower than usual.  If persons had such poor sight that they could not read the document properly then they would likely have required assistance to read the ballot even if it had been printed on the correct side of the page.  Such persons are entitled to the assistance of a person of their choosing per s 78 of the Act.
  5. [82]
    In my conclusion the fact the ballots were printed over the security pattern did not materially alter or impair their legibility such that the voters issued with them may have been deprived of a fair opportunity to correctly record their vote.  There is no or insufficient substance to this point for it to support a conclusion it is just and equitable to intervene in the election result.

Conclusion and Orders

  1. [83]
    It follows from the above reasons that I do not consider it just and equitable to intervene to vacate the division 8 election result and order a fresh election.  The application must be dismissed. The result stands.
  2. [84]
    It will be necessary to hear the parties as to costs, if costs are not agreed.
  3. [85]
    My orders are:
  1. Application dismissed.
  2. I will hear the parties as to costs, if costs are not agreed in the meantime, at 1.30pm 25 July 2024, sitting in Bundaberg by videolink from Cairns with out of town parties having leave (on the giving of a day’s advance notice to the Registrar at Bundaberg) to appear in Bundaberg by videolink.
  3. The Registrar at Bundaberg will co-ordinate the availability of a courtroom and the functioning and linking of the videolink(s) for the purposes of implementing order 2.

Footnotes

[1]  See for example, Corporations Act 2001 (Cth) s 461(1)(k); Family Law Act 1975 (Cth) ss 79(2), 90SM(3); Patents Act 1990 (Cth) s 138(4); Competition and Consumer Act 2010 (Cth) s 87(3)(c), (d); Designs Act 2003 (Cth) s 93(3A); Property Law Act 1974 (Qld) s 286(1); Succession Act 1981 (Qld) s 36(7); Biosecurity Act 2014 (Qld) s 496(6); Public Health Act 2005 (Qld) s 454B(4); Referendums Act 1997 (Qld) s 55(1).

[2] HFM043 v Republic of Nauru (2018) 359 ALR 176, 180.

[3]  Out of an abundance of caution the Commission notified the Queensland Attorney-General and the Queensland Human Rights Commission in connection with this aspect of the application and neither wished to intervene. 

[4]  See for example, Turner v King [1992] 1 Qd R 307; Tanti v Davies (No 3) [1996] 2 Qd R 602; Caltabiano v Electoral Commission of Queensland (No 2) [2010] 2 Qd R 1.

[5]  Per amended ground (vi) and the grounds’ general concluding paragraph.

[6]  See s 67.

[7]  [1996] 2 Qd R 602.

[8] Tanti v Davies (No 3) [1996] 2 Qd R 602, 608.

[9] Tanti v Davies (No 3) [1996] 2 Qd R 602, 608.

[10]  [2001] 1 Qd R 117, 123.

[11]  [2010] 2 Qd R 1, 41.

[12]  [1992] 1 Qd R 307.

[13] Turner v King [1992] 1 Qd R 307, per Macrossan CJ 310, Derrington J 316-317.

[14]  [1992] 1 Qd R 307, 310.

[15]  [1992] 1 Qd R 307, 308-309.

[16]  T2-24 L23.

[17]  Albeit not the pattern for the election of a division 8 councillor in that the elected councillor was unopposed at that election.

Close

Editorial Notes

  • Published Case Name:

    Sanders v ECQ

  • Shortened Case Name:

    Sanders v Electoral Commission Queensland

  • MNC:

    [2024] QSC 147

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    11 Jul 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Caltabiano v Electoral Commission of Queensland (No 4)[2010] 2 Qd R 1; [2009] QSC 294
3 citations
Jump To
Cite 1 - [2010] 2 Qd R 1
Cite 2 - [2010] 2 Qd R 1
Cite 3 - [2010] 2 Qd R 1
Carroll v Electoral Commission of Queensland[2001] 1 Qd R 117; [1998] QSC 190
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 117
Cite 2 - [2001] 1 Qd R 117
HFM043 v Republic of Nauru (2018) 359 ALR 176
2 citations
Jump To
Cite 1 - (2018) 359 ALR 176
Cite 2 - (2018) 359 ALR 176
Tanti v Davies (No 3) [1996] 2 Qd R 602
5 citations
Jump To
Cite 1 - [1996] 2 Qd R 602
Cite 2 - [1996] 2 Qd R 602
Cite 3 - [1996] 2 Qd R 602
Cite 4 - [1996] 2 Qd R 602
Cite 5 - [1996] 2 Qd R 602
Turner v King[1992] 1 Qd R 307; [1990] QSCFC 87
6 citations
Jump To
Cite 1 - [1992] 1 Qd R 307
Cite 2 - [1992] 1 Qd R 307
Cite 3 - [1992] 1 Qd R 307
Cite 4 - [1992] 1 Qd R 307
Cite 5 - [1992] 1 Qd R 307
Cite 6 - [1992] 1 Qd R 307

Cases Citing

Case NameFull CitationFrequency
Sanders v Electoral Commission Queensland [No 2] [2024] QSC 215 2 citations
1

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