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Pipped candidate’s court challenge fails

A Bundaberg Regional Council candidate beaten by just one vote in the local government elections earlier this year has failed in his bid to have another election ordered.

Shorne Christopher Sanders (3063 votes) lost to Stephen Cooper (3064 votes) in Bundaberg Division 8 on 16 March, but argued long queues at voting booths had resulted in eligible voters leaving without voting, and he challenged the result in the Supreme Court.

In his decision published on Thursday, Justice Henry found that although evidence showed some potential voters did lose patience, the “inconvenience occasioned by the problem with long queued waiting times was not of such a degree that the court should intervene in the result”.

He said the determinative legal consideration was whether it was “just and equitable” to intervene, including consideration of whether voters had a “fair opportunity” to vote.

Mr Sanders had submitted that the Electoral Commission Queensland (ECQ) “by employing an insufficient number of issuing officers … thereby caused long queues and delays for voters, … thereby preventing electors … from recording their votes with effect such that the formal result does not represent the free and deliberate choice of the competent electors”.

The ECQ relied partly on 2020 voting patterns to determine the number of staff required at the two booths established on polling day, at Avoca and Branyan, for Division 8. It predicted the Avoca booth would take 905 votes and the Branyan booth 706. The booths ended up taking 1766 and 1401 votes respectively.

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“It is well known that at some electoral booths more than others, and at some times of day more than others, voters can encounter long queued waiting times on election days,” Justice Henry said.

“However, I accept queued waiting times of 40 to 60 minutes are unusual, particularly for such prolonged proportions of the day as occurred in Division 8 on this election day.

“It is obvious these undesirably long queued waiting time were a result of there being insufficient booth staff to promptly process the larger than forecast number of attending voters for substantial proportions of the day.”

However, he said it was not possible to know whether, and how many, of the abandoning voters left because they could wait no longer, or what proportion voted later, or elsewhere, that day.

“That such abandoning voters may have later returned to vote and did vote is entirely possible. There is no evidence that at either booth the long queued waiting times persisted until the 6pm close of voting so that persons were prevented from voting on election day. At Avoca the problem of long queues had subsided by 5pm. The latest evidence of long queues occurring at Branyan was mid-afternoon,” he said.

Further, there was no evidence that the proportion of electors who failed to vote in this election was abnormal in comparison to past elections, he said.

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Justice Henry also pointed to the “alternatives to the inconvenience of waiting in a long line at one election booth at one time of day on election day”.

These included voting outside Division 8, the legal entitlement to two hours’ absence from work in order to vote, and the opportunity for pre-poll voting for two weeks (without the need to provide a justifying reason).

“True it is, voters were not obliged to take up the various alternative means of voting other than braving the well-known inconvenience of having to wait in potentially long queues at an election booth on election day,” he said.

“True it is, long queued waiting times persisted for a greater proportion of this election day than would have been expected and planned for by some voters who chose to vote on election day.

“But they were not deprived of a fair opportunity to vote in circumstances where the option of voting before election day was open to them and even on election day it remained open to them to seek out alternate booths or return and vote when queue lengths had subsided.”

Further, fulfilling the legal obligation to vote necessarily involved a degree of inconvenience to the voter, and was “an example of the imposition which the modest price of citizenship in our democracy carries”, Justice Henry said.

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“Of course, the greater than usual degree of inconvenience involved in voting on this election day was regrettable. Of course, those obliged to administer elections should strive to avoid inconvenience to voters of the degree which occurred on this election day. But it remains that inconvenient or not, voters were obliged to vote,” he said.

He dismissed Mr Sanders’ application and ordered a hearing on costs.

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