Spence v Queensland

Case [2019] HCA 15


HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

GARY DOUGLAS SPENCE  PLAINTIFF

AND

STATE OF QUEENSLAND  DEFENDANT

Spence v Queensland

[2019] HCA 15

Date of Order:  17 April 2019
Date of Publication of Reasons:  15 May 2019

B35/2018

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…

Continue reading Spence v Queensland

Sign in free to access the full text

Details
AGLC
Spence v Queensland [2019] HCA 15
Case
[2019] HCA 15
Decision Date

CaseChat Overview and Summary

This case concerned a special case stated to the High Court of Australia, brought by the plaintiff, Spence, against the State of Queensland. The dispute involved the validity of amendments made to Queensland's electoral legislation, which prohibited property developers from making gifts to political parties, and the validity of a provision within the Commonwealth Electoral Act 1918 (Cth), specifically section 302CA. The core of the matter revolved around the legislative powers of the Commonwealth Parliament concerning federal elections and the relationship between Commonwealth and State laws.

The High Court was required to determine several key legal issues. These included whether the Queensland amendments impermissibly burdened the implied freedom of political communication, whether they were beyond Queensland's legislative power due to intergovernmental immunities or an intrusion into exclusive Commonwealth legislative power, and whether section 302CA of the Commonwealth Electoral Act was invalid as being beyond the Commonwealth's legislative power. Further questions concerned the potential invalidity of section 302CA by reason of contravening the principles in *Melbourne Corporation v The Commonwealth* and *University of Wollongong v Metwally*, and whether the Queensland amendments were invalid due to inconsistency with the Commonwealth Electoral Act under section 109 of the Constitution.

The Court's reasoning led to the conclusion that the Queensland amendments were valid and did not infringe the implied freedom of political communication, nor were they beyond the State's legislative power or inconsistent with Commonwealth law. However, the Court found section 302CA of the Commonwealth Electoral Act to be wholly invalid, determining it to be beyond the Commonwealth's legislative power. The Court noted that the condition precedent in section 302CA(3)(b)(ii) did not create retroactive inconsistency and did not conflict with section 109 of the Constitution, as it allowed State laws to operate subject to a condition precedent on gifts.

The High Court answered the questions posed in the special case. It found the Queensland amendments to be valid, answering questions (a), (b), (c), (g), and (h) in the negative. Conversely, it declared section 302CA of the Commonwealth Electoral Act to be wholly invalid, answering question (d) affirmatively. Questions (e) and (f) were deemed unnecessary to decide. The plaintiff, Spence, was ordered to pay the costs of the special case.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER AND KEANE JJ
The most basic reason Queensland's submission cannot succeed is that the condition precedent in s 302CA(3)(b)(ii) does not create or remove any retroactive inconsistency and does not conflict with s 109 of the Constitution. Unlike the Commonwealth amendments considered in Metwally, s 302CA(3)(b)(ii) is not a subsequent, retroactive law that purports to "expunge the past"[566]. The effect of the provision is to allow State or Territory electoral laws to operate subject to a condition precedent upon gifts that, when given, may be used for federal electoral purposes. That condition precedent is that the gifts are later kept or identified separately in order to be used for a State or Territory electoral purpose. The condition precedent always applied, and applies.[566]Metwally (1984) 158 CLR 447 at 478.Conclusion I would have answered each of the questions in the special case as proposed by Gordon J.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER AND KEANE JJ

Full text does not contain this section.