Challenging elections can be a challenging affair
With the seats called, the balloons dropped and the corflutes collected, the 2024 Queensland State Election is already out of mind for most. But for one institution, the work from the 2024 election could be just getting started.
What is the Court of Disputed Returns?
The Electoral Act 1992 (Qld) (Electoral Act) is the primary Act that regulates State elections in Queensland. Part 8 of the Electoral Act sets out that the Court of Disputed Returns is the judicial body with the jurisdiction to hear challenges to State elections, as well as local government elections and challenges under the Referendums Act 1997 (Qld).[1]
The Supreme Court of Queensland is the Court of Disputed Returns for the purpose of the Electoral Act. A single judge constitutes the Court.
The Court of Disputed Returns follows the ordinary rules and processes of the Supreme Court of Queensland, unless modified by the Electoral Act.
Who can challenge an election?
In Queensland, an election can only be disputed by:
- a candidate at the election for the electoral district concerned;
- an elector for the electoral district concerned (i.e. a voter);
- the Electoral Commission of Queensland (ECQ); or
- a person who the ECQ decided was not properly nominated.[2]
There is no ability to challenge an election ‘at large’. A challenge is constrained to a particular electoral contest – a specific seat in the context of the Queensland State Election.
The ECQ is the respondent to electoral challenges. The person who was declared the winner of the election can choose to join the proceedings within seven days of receiving the application to challenge the election.[3]
How is an election challenged?
To commence a proceeding challenging an election, an application must be filed in the Supreme Court Registry which:
- sets out the facts relied on to dispute the election;
- sets out the order sought from the Court of Disputed Returns; and
- must be signed by —
- in the case of an application by the ECQ — the Electoral Commissioner; and
- in any other case — the applicant before a witness, whose signature, occupation and address must also be included.[4]
The application must be filed within seven days after the day on which the writ for the election is returned. The application must be accompanied by a deposit (currently $400), along with the ordinary filing fees.[5]
If these mandatory requirements are not complied with, the application has no effect.
The Court of Disputed Returns is tasked with dealing with an election challenge ‘as quickly as reasonable in the circumstances’.[6] The Electoral Act mandates that the Court must use its ‘best efforts’ to ensure that the proceedings begin within 28 days after the application is lodged, and final orders are given within 14 days of the end of the proceeding.[7] To assist the Court in reaching a decision quickly, the Court is ‘not bound by technicalities, legal forms or rules of evidence.’[8]
How does the Court decide?
The Electoral Act does not provide a list of reasons why an election result should be overturned. The Act simply states in section 146(1) that:
‘…the Court of Disputed Returns may make any order or exercise any power in relation to that application that the court considers just and equitable.’
The Court has historically interpreted ‘just and equitable’ in line with the Court’s role of reflecting the will of the people. There is differing authority on whether a breach of the Electoral Act is a necessary prerequisite for the Court ruling to overturn an election.
In Innes v Electoral Commission of Queensland (No 2) [2020] 5 QR 623, Ryan J (considering a challenge to a local government election) proceeded on the basis that a breach of the local government equivalent of the Electoral Act[9] was a prerequisite to the grant of relief.
In Sanders v ECQ [2024] QSC 147, Henry J (again in the context of local government elections) it was decided a breach of the Act was not necessary.
In any event, a breach of the Electoral Act is not of itself sufficient to warrant intervening in an election – the breach of the Act, or other circumstance, must have resulted in a situation in which it would be just and equitable for the Court to intervene.
When is a challenge likely to succeed?
With the Court’s wide discretion to overturn an election if it is just and equitable, and no two elections are the same, it is impossible to conclusively identify challenges that will, or will not, succeed. However, a review of past decisions of the Court of Disputed Returns gives some indication of factors likely to lead to a successful challenge, and factors likely to lead to failure.
A challenge is more likely to be successful if:
- it is a challenge to the winning candidate’s validity to run (i.e. the candidate was not eligible to nominate or be elected);
- there is a clear and significant error in the election process – like the loss of a large number of ballots or the disenfranchisement of a sufficient number of electors; or
- the election was close, because small errors are more likely to be decisive if there are only a handful of votes in the result.
On the other hand, there are also plenty of indicia of a likely doomed challenge. These include:
- failing to comply with the mandatory procedural requirements set out in the Electoral Act;
- seeking to challenge ‘the whole election’ across Queensland, rather than a specific contest; and
- basing the case on ‘questionable’ legal theories, like deposits paid by candidates have to be in gold bullion, or that the office of the Governor of Queensland was actually abolished in 1986 and so the whole election is invalid (yes – both real arguments run in the Court[10]).
Applicants wanting to challenge an election should remember that the Court is concerned with what is just and equitable having regard to the will of the people – not what is fair to the applicant.
A losing candidate who believes the election was not fair must act quickly after the event to identify why the election result does not justly and equitably reflect the will of the people. Seeking legal advice is likely to improve the chances of success.
Winning candidates who receive notice of a challenge to an election should equally seek legal advice and act quickly to get involved in a Court of Disputed Returns proceeding.
In the current tense electoral climate, should you have any questions arising from the above, please do not hesitate to contact our expert public law team of Partner, Michael Lucey and Senior Associate, Patrick O’Brien who can readily assist you.
[1] Electoral Act 1992 (Qld) s 137.
[2] Electoral Act 1992 (Qld) s 139.
[3] Electoral Act 1992 (Qld) s 143. There is an obligation to serve the application on the successful candidate.
[4] Electoral Act 1992 (Qld) s 140.
[5] Electoral Act 1992 (Qld) s 140.
[6] Electoral At 1992 (Qld) s 144(3).
[7] Electoral At 1992 (Qld) s 144(4).
[8] Electoral At 1992 (Qld) s 144(2).
[9] The Local Government Electoral Act 2011 (Qld).
[10] Skyring v Electoral Commission of Queensland [2002] 1 Qd R 442; Clampett v Wensley & Ors [2009] QCA 277, 5.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.