Spence v Queensland

• Jurisdiction: Queensland
• Court: High Court
• Judge: Kiefel CJ,Bell,Gageler,Keane JJ.,Nettle J.,Gordon J.,Edelman J.
• Judgment Date: 15 May 2019
• Neutral Citation: [2019] HCA 15
• Docket Number: B35/2018
• Date: 15 May 2019

Gary Douglas Spence

Plaintiff

and

State of Queensland

Defendant

[2019] HCA 15

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

B35/2018

HIGH COURT OF AUSTRALIA

Constitutional law (Cth) — Powers of Commonwealth Parliament — Federal elections — Severance — Where s 51(xxxvi) in application to ss 10 and 31 of Constitution conferred legislative power on Commonwealth Parliament with respect to federal elections — Where Commonwealth Parliament enacted s 302CA within Div 3A of Pt XX of Commonwealth Electoral Act 1918 (Cth) — Where s 302CA relevantly conferred authority on person to make, and on “political entity” to receive and retain, gift not prohibited by Div 3A provided that gift or part of it was “required to be, or may be” used for certain purposes relating to federal elections — Where s 302CA provided for displacement of such authority in circumstances including where State or Territory electoral law required gift or part of it to be kept or identified separately to be used only for purpose of State, Territory or local government election — Whether Commonwealth legislative power with respect to federal elections exclusive or concurrent — Whether s 302CA within scope of Commonwealth legislative power with respect to federal elections — Whether possible to sever s 302CA to preserve part of its operation within scope of Commonwealth legislative power.

Constitutional law (Cth) — Inconsistency between Commonwealth and State laws — Gifts to political parties — Where Queensland Parliament passed amendments to Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) prohibiting property developers from making gifts to political parties that endorse and promote candidates for election to Legislative Assembly and local government councils — Whether Queensland amendments inconsistent with s 302CA or framework of Pt XX of Commonwealth Electoral Act — Whether s 302CA invalid for infringing principle in University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74.

Constitutional law (Cth) — Implied freedom of communication about governmental and political matters — Where amendments to Electoral Act 1992 (Qld) substantially replicated provisions in Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 — Whether amendments invalid for infringing implied freedom.

Constitutional law (Cth) — Relationship between Commonwealth and States — Doctrine of inter-governmental immunities — Whether implication expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 operates reciprocally to protect States and Commonwealth from impermissible interference by law of one polity with operations of government in another — Whether s 302CA invalid for contravening Melbourne Corporation principle — Whether Queensland amendments invalid for contravening Melbourne Corporation principle.

Words and phrases — “bare attempt to limit or exclude State power”, “concurrent power”, “electoral expenditure”, “electoral matter”, “exclusive power”, “federal elections”, “federalism”, “immunity from State laws”, “incidental”, “inconsistency”, “inter-governmental immunities”, “political entity”, “political party”, “required to be, or may be, used for the purposes of incurring electoral expenditure, or creating or communicating electoral matter”, “severance”, “State elections”, “structural implication”, “sufficient connection”.

Constitution, ss 7, 9, 10, 29, 31, 51(xxxvi), (xxxix), 109.

Acts Interpretation Act 1901 (Cth), ss 13, 15A, 15AD.

Commonwealth Electoral Act 1918 (Cth), ss 4AA, 302CA, Pt XX.

Election Funding, Expenditure and Disclosures Act 1981 (NSW), Pt 6, Div 4A.

Electoral Act 1992 (Qld), Pt 11, Div 8, Subdiv 4.

Local Government Electoral Act 2011 (Qld), Pt 6, Div 1A.

Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld), Pts 3, 5.

Representation

J K Kirk SC and P A Hastie QC with M J Forrest for the plaintiff (instructed by ClarkeKann Lawyers)

P J Dunning QC, Solicitor-General of the State of Queensland, with S J Keim SC, G J D del Villar and F J Nagorcka for the defendant (instructed by Crown Solicitor (Qld))

S P Donaghue QC, Solicitor-General of the Commonwealth, and P D Herzfeld with C J Tran for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with E S Jones for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)

M E O'Farrell SC, Solicitor-General for the State of Tasmania, with J L Rudolf for the Attorney-General for the State of Tasmania, intervening (instructed by Solicitor-General for the State of Tasmania)

C D Bleby SC, Solicitor-General for the State of South Australia, with K M Scott for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

K L Walker QC, Solicitor-General for the State of Victoria, with M A Hosking for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

J A Thomson SC, Solicitor-General for the State of Western Australia, with J M Misso for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

ORDER

The questions raised by the special case and the answers that must be given to them are as follows:

• a) Are the amendments made to the Electoral Act 1992 (Qld) by part 3 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) because they impermissibly burden the implied freedom of political communication on governmental and political matters, contrary to the Commonwealth Constitution?

  Answer: No.

• b) Are the amendments made to the Electoral Act 1992 (Qld) by part 3 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) because they are beyond the power of the Parliament of Queensland to enact on the basis of an implied doctrine of intergovernmental immunities or on the basis that they impermissibly intrude into an area of exclusive Commonwealth legislative power?

  Answer: No.

• c) Are the amendments made to the Local Government Electoral Act 2011 (Qld) by part 5 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) because they are beyond the power of the Parliament of Queensland to enact on the basis of an implied doctrine of intergovernmental immunities or on the basis that they impermissibly intrude into an area of exclusive Commonwealth legislative power?

  Answer: No.

• d) Is section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in whole or in part and, if in part, to what extent) because it is beyond the Commonwealth's legislative power?

  Answer: The section is wholly invalid.

• e) Is section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in whole or in part and, if in part, to what extent) because it purports to operate in a manner that is contrary to the principle derived from Melbourne Corporation v Commonwealth (1947) 74 CLR 31?

  Answer: Does not arise.

• f) Is section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in whole or in part and, if in part, to what extent) because it purports to operate in a manner that is contrary to the principle derived from University of Wollongong v Metwally (1984) 158 CLR 447, namely that a Commonwealth law cannot override the operation of section 109 of the Constitution?

  Answer: Unnecessary to decide.

• g) Are the amendments made to the Electoral Act 1992 (Qld) by part 3 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) pursuant to section 109 of the Commonwealth Constitution by reason of their being inconsistent with the Commonwealth Electoral Act 1918 (Cth)?

  Answer: No.

• h) Are the amendments made to the Local Government Electoral Act 2011 (Qld) by part 5 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) pursuant to section 109 of the Commonwealth Constitution by reason of their being inconsistent with the Commonwealth Electoral Act 1918 (Cth)?

  Answer: No.

• i) Who should pay the costs of the special case?

  Answer: The plaintiff.

1 Kiefel CJ, Bell, Gageler and Keane JJ. This special case in a proceeding in the original jurisdiction of the High Court raises questions concerning the validity and operability of constitutionalState and Commonwealth electoral laws each purporting to apply to the making of gifts to political parties.

2 The impugned State and Commonwealth electoral laws are framed against the background that political parties in Australia are typically unincorporated associations organised geographically by State and Territory. The objects of a political party typically include to endorse and promote candidates for election to the Commonwealth Parliament as well as to endorse and promote candidates for election to State Parliaments and Territory legislatures and to local government councils. Because registration of a political party brings benefits, which range from...