Cherry v State of Queensland

The High Court of Australia considered an appeal by Cherry against the State of Queensland concerning the validity of a notice issued under section 104 of the *Disaster Management Act 2003* (Qld). The dispute arose from the State's decision to issue a direction to Cherry, requiring her to leave her property and remain away from it for a specified period, due to concerns about a bushfire. Cherry contended that the notice was invalid because it was issued without affording her procedural fairness, specifically the opportunity to be heard before the direction was made.

The central legal issue before the High Court was whether the statutory power to issue a direction under section 104 of the *Disaster Management Act 2003* (Qld) was subject to an implied obligation to afford procedural fairness to the person affected by the direction. This involved an examination of the nature of the power conferred by the Act, the circumstances in which it could be exercised, and the potential impact on individual rights.

Gageler CJ, delivering the judgment of the Court, held that the power to issue a direction under section 104 was not subject to an implied obligation to afford procedural fairness. His Honour reasoned that the statutory scheme contemplated that directions could be issued in circumstances of urgency and where immediate action was necessary to protect life and property. The Act provided for a review mechanism after the direction had been issued, which was considered sufficient to satisfy any residual concerns about fairness. The Court concluded that the legislative intent was to prioritise swift action in disaster situations over the procedural step of providing a hearing beforehand.