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 2015DIVISION:
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 madeORDER:
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 118Glennan 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, appliedCOUNSEL:
The applicant appeared on his own behalf
B Mumford for the respondentSOLICITORS:
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…
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- Case
- [2016] QCA 152
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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