Local Government Association of Queensland (Inc) v Queensland; Ex parte

In the High Court, Justice Kirby considered an application for the removal of a cause from the Supreme Court of Queensland. The parties involved were the Local Government Association of Queensland (Incorporated) as the respondent to the removal application, and the State of Queensland as the applicant for removal, with the Attorney-General of Queensland acting on behalf of the State. The dispute concerned the validity of section 224A(b) of the *Local Government Act 1993* (Qld), which purported to disqualify a local government councillor from office upon being declared a candidate for election to the Federal Parliament.

The central legal issues before the Court were whether the cause, involving a potential inconsistency between a State law and the Commonwealth Constitution and *Commonwealth Electoral Act 1918* (Cth), constituted a "cause arising under the Constitution" within the meaning of section 40(1) of the *Judiciary Act 1903* (Cth), thereby necessitating its removal to the High Court upon application by the State Attorney-General. Furthermore, the Court had to determine whether, having been removed, the cause could and should be remitted back to the Supreme Court of Queensland, particularly in light of the urgency of the matter due to an impending federal election and the High Court's capacity to hear and determine the cause in a timely manner.

Justice Kirby reasoned that the State law's provision for disqualification upon declaration as a candidate for federal election raised a clear question of inconsistency with section 44 of the Commonwealth Constitution and relevant federal electoral legislation. This established the cause as one arising under the Constitution, thus engaging section 40(1) of the *Judiciary Act* and mandating removal to the High Court upon the Attorney-General's application. However, considering the exceptional circumstances, including the imminent federal election and the practical difficulties in securing a timely hearing and relief in the High Court, Justice Kirby applied section 42 of the *Judiciary Act* to permit the remitter of the cause back to the Supreme Court of Queensland. This decision aimed to ensure a reasoned decision on the substantive constitutional issue could be obtained promptly.

The Court made orders accordingly. Firstly, the cause was removed into the High Court pursuant to section 40(1) of the *Judiciary Act*. Secondly, on the application of the Local Government Association of Queensland (Incorporated), the cause was remitted to the Supreme Court of Queensland pursuant to section 42 of the *Judiciary Act*. Finally, the costs of the proceedings before the High Court were to be costs in the cause so remitted.