Mowen v Australian Electoral Commission - [2016] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION:

Mowen v Australian Electoral Commission [2016] QCA 152

PARTIES:

MOWEN, Bevan Alan

(applicant)v
AUSTRALIAN ELECTORAL COMMISSION
(respondent)

FILE NO/S:

CA No 13 of 2016
DC No 32 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Rockhampton – Unreported, 8 December 2015

DELIVERED ON:

10 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2016

JUDGES:

Fraser JA and Atkinson and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – GENERAL MATTERS – VALIDITY OF LAWS OF THE COMMONWEALTH – GENERALLY – where the applicant was convicted and fined in the Magistrates Court for failing to vote at a Federal election in contravention of s 245(15) of the Commonwealth Electoral Act 1918 (Cth) – where the applicant’s appeal to the District Court was dismissed – where the applicant’s core argument, in seeking leave to appeal to this court, seems to be that the Commonwealth Electoral Act 1918 (Cth) is invalid for inconsistency with the Commonwealth Constitution – whether there is any such inconsistency – whether the applicant has suffered any injustice – whether there is any reasonable argument that there is an error to be corrected in the findings of the proceedings below

Australia Act 1986 (Cth), s 11
Commonwealth Constitution, s 30, s 34, s 80
Commonwealth Electoral Act 1918 (Cth), s 93, s 163, s 245
Crimes Act 1914 (Cth), s 4G, s 4H
District Court of Queensland Act 1967 (Qld), s 118

Glennan v Commissioner of Taxation (2003) 77 ALJR 1195; (2003) 198 ALR 250; [2003] HCA 31, cited
Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited
Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, cited
Rodgers v Smith[2006] QCA 353, applied
Till v Johns[2004] QCA 451, applied

COUNSEL:

The applicant appeared on his own behalf
B Mumford for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

FRASER JA: I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.
ATKINSON J: The applicant, Bevan Mowen, brought an application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal against the judgment of the District Court. The judgment in the District Court was itself a decision on an appeal from a decision of the Magistrates Court.
Leave to appeal should be granted where it is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected. As Keane JA held in Rodgers v Smith[1] quoting Pearson v Thuringowa City Council[2] the statutory restriction on appeals to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 152
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case of Mowen v Australian Electoral Commission involved the applicant who was convicted and fined in the Magistrates Court for failing to vote at a Federal election. This failure contravened section 245(15) of the Commonwealth Electoral Act 1918 (Cth). The applicant’s appeal to the District Court was dismissed, and they sought leave to appeal to the higher court on the basis that the Commonwealth Electoral Act 1918 (Cth) might be inconsistent with the Commonwealth Constitution, thereby rendering it invalid. The central issues before the court were to determine whether such inconsistency existed, whether the applicant had suffered any injustice, and if there was a reasonable argument for correcting any error in the findings of the lower courts.

The court examined the applicant's argument regarding the inconsistency of the Commonwealth Electoral Act 1918 (Cth) with the Commonwealth Constitution. It assessed whether the compulsory voting provision in the Electoral Act contravened any constitutional principles. The court also considered the applicant's claim of injustice and whether there was a reasonable argument for correcting any errors in the lower courts’ findings. Ultimately, the court found that the applicant had not demonstrated a reasonable argument that there was an error in the findings of the proceedings below, nor had they shown that the Electoral Act was inconsistent with the Commonwealth Constitution. The court was satisfied that the compulsory voting provisions did not infringe upon any constitutional rights.

As a result of its reasoning, the court concluded that the application for leave to appeal was without merit. The applicant’s arguments did not present a reasonable prospect of success, and no injustice had been demonstrated that would warrant an appeal. Consequently, the court refused the application for leave to appeal.

ORDERS:
The application for leave to appeal is refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mowen v Australian Electoral Commission [2016] QCA 152
PARTIES:	MOWEN, Bevan Alan (applicant)v AUSTRALIAN ELECTORAL COMMISSION (respondent)
FILE NO/S:	CA No 13 of 2016 DC No 32 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Rockhampton – Unreported, 8 December 2015
DELIVERED ON:	10 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2016
JUDGES:	Fraser JA and Atkinson and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – GENERAL MATTERS – VALIDITY OF LAWS OF THE COMMONWEALTH – GENERALLY – where the applicant was convicted and fined in the Magistrates Court for failing to vote at a Federal election in contravention of s 245(15) of the Commonwealth Electoral Act 1918 (Cth) – where the applicant’s appeal to the District Court was dismissed – where the applicant’s core argument, in seeking leave to appeal to this court, seems to be that the Commonwealth Electoral Act 1918 (Cth) is invalid for inconsistency with the Commonwealth Constitution – whether there is any such inconsistency – whether the applicant has suffered any injustice – whether there is any reasonable argument that there is an error to be corrected in the findings of the proceedings below Australia Act 1986 (Cth), s 11 Commonwealth Constitution, s 30, s 34, s 80 Commonwealth Electoral Act 1918 (Cth), s 93, s 163, s 245 Crimes Act 1914 (Cth), s 4G, s 4H District Court of Queensland Act 1967 (Qld), s 118 Glennan v Commissioner of Taxation (2003) 77 ALJR 1195; (2003) 198 ALR 250; [2003] HCA 31, cited Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, cited Rodgers v Smith[2006] QCA 353, applied Till v Johns[2004] QCA 451, applied
COUNSEL:	The applicant appeared on his own behalf B Mumford for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent