HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJGARY 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 2019B35/2018
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…
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- AGLC
- Spence v Queensland [2019] HCA 15
- Case
- [2019] HCA 15
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, GAGELER AND KEANE JJ
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