Innes v Electoral Commission of Queensland & Anor (No 1) [2020] QSC 273; Innes v Electoral Commission of Queensland & Anor (No 2) [2020] QSC 293; Innes v Electoral Commission of Queensland & Anor (No 3) [2020] QSC 320
Date: 24 September 2020
Court: Court of Disputed Returns
Judicial Officer: Ryan J
Human Rights Act 2019 (Qld) Sections: ss 5, 8, 9, 13, 15, 16, 23, 31, 48, 53, 58, 59
Rights Considered: Right to equality before the law; Right to take part in public life; Right to life; Right to a fair hearing
Other Legislation: Acts Interpretation Act 1954 (Qld) ss 24AA, 33; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 4, ss 6(2)(b), 32, 38, 39; Commonwealth Electoral Act 1918 (Cth), s 327(1); Local Government Act 2009 (Qld), ss 8, 90A, 90B, 90C, 90D, 152, 153, 171B, 175K, 175L, 182; Local Government Electoral Act 2011 (Qld), ss 26, 45AA, 49, 77, 107, 113, 113B, 113D, 136, 140, 142, 144, 145, 146, 182, 200E, 200G; Local Government Regulation 2012 (Qld), s 290; Public Health Act 2005 (Qld), s 362B
Keywords: Public Law
A self-represented litigant applied to the Court of Disputed Returns for orders to quash the result of the Sunshine Coast Regional Council election and bring about a new election. The Court found that the applicant’s submissions alleged a breach of the right to recognition and equality before the law (section 15) and the right to take part in public life (section 23). However, the Court held that any limitation on human rights was reasonable and justifiable pursuant to s 13 of the Human Rights Act 2019 (Qld).
Mark Jamieson, the sitting Mayor of the Sunshine Coast Regional Council (‘SCRC’), successfully campaigned for re-election as mayor during the Queensland Local Government Elections on 28 March 2020. The self-represented applicant, Mr Innes, applied to the Court of Disputed Returns for orders which would ‘have the effect of quashing the SCRC election result and ordering a new election’: at [2].
Mr Innes argued that the Electoral Commission of Queensland conducted the election unfairly and undemocratically in light of the COVID-19 pandemic. In particular, Mr Innes claimed that there were insufficient postal votes, a lack of clarity around the dates of execution of postal votes, and insufficient capacity for handling telephone voting. He also claimed that there was interference in the election by the Chief Health Officer and by way of SCRC announcements during the election period. As a result, he claimed that the election outcome was ‘significantly distorted:’ at [32].
Mr Innes also argued that his (and voters’) human right ‘NOT to be exposed to “risk of harm”’ was violated by the Electoral Commission of Queensland’s failure to prohibit physical polling: at [33]. However, no such right exists under the Human Rights Act 2019 (Qld), and the Court noted that Mr Innes did not intentionally raise issues under the Act. Indeed, Mr Innes submitted that ‘it would be “a bridge altogether too far” to suggest that he was alleging a breach of any other human right:’ at [205]. Nonetheless, the Attorney-General gave notice that she would intervene in the application under section 50 of the Human Rights Act 2019 (Qld) in response to the potential human rights issues involved.
The Attorney-General submitted that ‘Mr Innes’ originating application and outline of argument, taken at their highest, place in issue the right to life (s 16 of the HR Act); and the right to take part in public life (s 23 of the HR Act)’: at [206]. The Court agreed that Mr Innes’ arguments alleged a breach of the right to take part in public life as per section 23 of the Human Rights Act 2019 (Qld). The Court also identified that certain arguments alleged a breach of the right to recognition and equality before the law pursuant to section 15 of the Human Rights Act 2019 (Qld). However, it was held that Mr Innes’ arguments did not allege a breach of the right not to be arbitrarily deprived of life.
It should be noted that the court did not consider this an appropriate vehicle for reaching solid conclusions about the operation of the Human Rights Act 2019 (Qld) in Queensland: at [202]. In its subsequent decision regarding costs (Innes v Electoral Commission or Queensland & Anor (No. 3) [2020] QSC 320) the court reiterated that: ‘... because the applicant was in no position to assist in the interpretation of the Human Rights Act 2019, I did not consider it appropriate to make any definitive statements about the application of the Act in Queensland. In that sense, there was little public interest benefit in my consideration of the interpretation of the Act’: at [33].
The Court went on to consider the ways in which the Human Rights Act 2019 (Qld) may be engaged before the Court of Disputed Returns, namely:
1. under s 5(2)(a), to the extent that the Court of Disputed Returns has functions under Part 2 and Part 3 of Division 3 of the Act;
2. under s 48, to the extent that the Court of Disputed Returns is required to interpret relevant statutory provisions; and
3. under ss 58 and 59, to the extent that Mr Innes has an existing right to claim for a remedy outside of any unlawfulness arising under the HR Act: [211].
The Court found that it was only necessary to consider ss 58 and 59 in this case. Section 58 of the Human Rights Act 2019 (Qld) provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or fail to give proper consideration to a right relevant to the decision. A person who claims that a public entity has breached s 58 can only bring legal proceedings on the basis of that claim by attaching it to a separate ground of unlawfulness (s 59(1)). The Court identified that several of Mr Innes’ allegations ‘identified acts or decisions of the ECQ which were arguably unlawful and engaged human rights:’ at [286]. However, the acts and decisions concerning conducting the election, including by in-person voting, were mandated by law. Further, although other acts or decisions ‘might’ have limited the human rights of some voters, any limitation on human rights was reasonable and justifiable according to s 13 of the Human Rights Act 2019 (Qld): at [301]. Thus, the Court concluded that the election was conducted compatibly with human rights.
Ultimately, Mr Innes had ‘not persuaded [the Court] that it would be just and equitable to make any of the orders he seeks’ nor that ‘there is any ground for believing that the SCRC election result does not represent the free and deliberate choice of electors:’ at [309]. His original application, as well as his application to re-open the hearing and application not to pay the Respondents’ costs, were dismissed.
Vist the judgements: