Innes v Electoral Commission of Queensland & Anor (No 2)

This matter concerned an application to the Court of Disputed Returns in relation to the election of the Mayor of the Sunshine Coast Regional Council held on 28 March 2020. His application “at its heart” reflected his belief that the election should not have gone ahead due to the COVID-19 pandemic. In dismissing the application, Ryan J emphasised that the Court of Disputed Returns’ jurisdiction under the Local Government Electoral Act 2011 was confined to disputes about the election of a person, rather than extending to complaints about elections generally.

Ryan J

24 September 2020

The applicant, Mr Innes, was an unsuccessful candidate for mayor of the Sunshine Coast Regional Council in the Queensland Local Government Elections held on 28 March 2020. [1]. He sought to overturn the re-election of the second respondent, Mr Jamieson, as Mayor. [2]. Mr Innes made a number of allegations in his application to the Court of Disputed Returns. [28]–[35]. “[A]t its heart”, the application reflected Mr Innes’ belief that the election ought to have been postponed due to the health risk posed to voters by COVID-19. [7].

In determining the application, Ryan J considered the jurisdiction of the Court of Disputed Returns ([13]–[27]), noting that s 136 of the Local Government Electoral Act 2011 (“the LGEA”) confined its jurisdiction to disputes about the election of a person during a local government election. [13]–[14]. The Court did not have:

“jurisdiction to consider complaints about elections generally – including, for example, a complaint that a certain electoral district should have conducted a full postal ballot or a complaint that the 2020 local government elections should not have been held at all.” [14].

The role of the Court was as outlined by Atkinson J in Caltabiano v Electoral Commission of Queensland (No 2) [2010] 2 Qd R 1 in relation to the Electoral Act 1992. [15]–[17]. The election result was presumed to be valid, with the applicant bearing the onus to prove on the balance of probabilities that the election result was not valid. [21]–[26]. Accordingly, Ryan J’s approach was to:

•assess the validity of the election in light of the statutory requirements of the LGEA by considering whether there had been any breaches of the statutory requirements of the LGEA;

•if a breach was proved, consider its effect on the election result and whether there were good grounds for believing that the result did not reflect the preference of a majority of electors, voting by way of a free and deliberate choice;

•determine, even if there had been a breach, whether the quantitative effect of the breach was small enough to not require the setting aside of the election result;

•determine whether the votes affected by any proven breach did not exceed the winning margin, such that the breach could not be said to have caused a result that did not reflect the preference of a majority of electors voting freely and deliberatively; and

•consider whether there had been proof of fraud, corruption or intimidation which may have influenced the electoral process as a whole to such an extent that would allow the Court to conclude that it would be just and equitable to order a new election. [19].

Her Honour noted that many of Mr Innes’ complaints alleged “unfairness”. However, unless the unfairness was a product of a breach of the statutory requirements of the LGEA or fraud, corruption, or intimidation then it did not provide a basis for a successful application. [20].

In dealing with the allegations made by Mr Innes – including, inter alia, that a large proportion of voters were prohibited from voting; that the State Chief Health Officer and Council had interfered in the result; that there were insufficient postal votes; that there was insufficient capacity for telephone voting; and that many elderly and infirm were effectively prohibited from voting ([29]–[32]) – her Honour again emphasised the limited nature of the Court’s jurisdiction. [115]. After reviewing the allegations and evidence ([38]–[190]), Ryan J concluded that the only statutory breach identified by Mr Innes concerned the cancellation of visitor elector voting before the power to cancel such voting was enacted. [192]. This affected only four electors, who may in fact have voted by post. Regardless, “the effect of the breach was miniscule”. [193]. In any event, even if some electors received postal ballots too late or if other allegations were substantiated, “the margin of Mr Jamieson’s win was large enough to satisfy [her Honour] that it would not be just or equitable” to allow the application. [195].

Justice Ryan also held that the election was conducted in accordance with the human rights of Mr Innes and voters under the Human Rights Act 2019. [196]–[308].

In the result, the application was dismissed with an opportunity to make submissions as to costs. [309]–[311].

S Walpole