Spence v State of Queensland

[2018] HCATrans 253

[2018] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2018

B e t w e e n -

GARY DOUGLAS SPENCE

Plaintiff

and

STATE OF QUEENSLAND

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 2018, AT 8.58 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear for the plaintiff.  (instructed by ClarkeKann)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the defendant.  (instructed by Crown Solicitor (Qld))

MR C.J. TRAN:   May it please the Court, I appear on behalf of the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Kirk.

MR KIRK:   Your Honour would appreciate that the amending Act to the Commonwealth Electoral Act was passed last week, it went through the House of Representatives on Tuesday, I think.  I think it got Royal Assent on Friday.  So, that is now in play.  It is not in dispute, I do not think, between the parties or the Commonwealth that it is a matter appropriate for a degree of expedition and, indeed, appropriate for determination, subject to the Court’s convenience, in the March hearing.  The dispute between, in essence, the Commonwealth and the plaintiff on one side, and the defendant on the other, is as to some timetabling issues.  We have tried to narrow the gap but we are not quite there.  To cut to the nub of it ‑ ‑ ‑

HIS HONOUR:   It is like a commercial list directions.

MR KIRK:   Quite possibly, and may be dealt with with the same expeditious resolution, I suspect.

HIS HONOUR:   Yes.

MR KIRK:   The core difference, I think, between us is that the defendant proposes a little Christmas present on Friday, 21 December of, all at the same time, an amended defence, a 78B notice and a draft special case.  And, we – and, I think, the Commonwealth – suggest that at least the amended defence and the 78B notice should be served on the Monday, four days earlier.  I know it is only four days but it is not insignificant given that, as your Honour would appreciate, after the 21st things go into a bit of a hiatus for most people around the country and so instructions need to be obtained, and so forth, if possible, in that week before Christmas.  That, I think, is the main difference between us.

I would add, only, that the State has known of the proposed changes to the Commonwealth Electoral Act since at least the last directions hearing before your Honour which was on Tuesday, 20 November.  True, it had

only gone through the Senate at that stage but not the Commonwealth but the tealeaves were well and truly there, so the State has known about it for a couple of weeks.  

HIS HONOUR:   Could I just ask a question about the Commonwealth Act.  It has not yet been proclaimed, I understand?

MR KIRK: Correct. So pursuant to section 2 of the Act which, for the record, is the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018, the relevant parts of the Act which are within Part 2 of Schedule 1 commence on either a day to be fixed by proclamation or otherwise within six months of assent, which would be the end of May at the latest.

Now, I obviously do not know what, if any, plans the Commonwealth has for proclamation but your Honour would well appreciate that it is election season around the country in the upcoming six months, so one may well infer it is quite likely that it will be proclaimed beforehand.  I do not know if Mr Tran can throw any more light on that.  I recognise it may give some difficulties if it is not proclaimed by the time of hearing, but even those would not be incapable of being overcome.  It is not hypothetical because it will commence.  It would just be a matter of appropriately phrasing the question and the answer.  But, to be frank, I would not be surprised if it has commenced prior to that date.  In fact, I would expect it.

HIS HONOUR:   Perhaps we could hear from Mr Tran on that, and then I will come back to you, Mr Solicitor.

MR TRAN:   I do not have any update to provide the Court and the parties in that regard, unfortunately, your Honour.

HIS HONOUR:   Thank you.  Mr Tran, do you have anything to say about timetabling generally?

MR TRAN:   In relation to timetabling, the only thing I would add is that if your Honour has the proposed directions, order 9 would see any interveners in support of the plaintiff filing their written submissions either at the end of January or the start of February.  We would push for the date proposed by the plaintiff and the Commonwealth for 6 February because of the unavailability of those giving instructions and of the Solicitor‑General to settle any documents prior to that date.

HIS HONOUR:   I am not at this stage inclined to make detailed orders for the filing of submissions.  What I am inclined to do is to make orders that would have a defence filed before Christmas – any proposed amended

special case filed before Christmas – and then the matter brought back before me, so I can see the shape of it, this year.  And I would then, at that stage, make detailed orders having the matter ready for March.  So thank you, Mr Tran, but I do not think I will get to order 9 today.

MR TRAN:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor.

MR DUNNING:   Thank you, your Honour.  Your Honour, in light of that information, the only real issue is the date upon which we deliver our amended defence.

HIS HONOUR:   Can I just ask this, is it a possibility that you will be seeking in your amended defence to challenge the validity of the provision of the Commonwealth Act upon which the plaintiff relies.

MR DUNNING:   I was about to come to that. 

HIS HONOUR:   Thank you.

MR DUNNING:   Yes, I hold instructions to do that.  We made a point of trying to be in a position today to give you an answer to that question.  We have instructions to challenge the validity of the Commonwealth Act.

HIS HONOUR:   Yes.  And are you at this stage in a position to outline the nature of that challenge?

MR DUNNING:   Yes, I am, albeit it is a little crude but essentially they would be challenges in their essence of a Melbourne Corporation‑type challenge and also a challenge to the Commonwealth power to legislate in what we would say is simply a law about State elections.

HIS HONOUR:   I am aware that there are property developer donation prohibitions in some other States.  Are you aware of the extent to which the electoral legislation in other States contains prohibitions along the lines of those contained in the Queensland legislation?

MR DUNNING:   I think, I can check, but I think it is just Queensland and Western Australia?  Sorry, just New South Wales.

HIS HONOUR:   I see.

MR DUNNING:   I would like to check about it.  For some reason I thought Western Australia may have had something along those lines but I might be mistaken about that but certainly New South Wales.

HIS HONOUR:   Yes. Well, would you be in a position to file a defence and additional section 78B notice on Monday, 17 December.

MR DUNNING:   We have been asked that and if your Honour orders that, we will make that happen.  It is effectively a little more than a week away from now which is why I ordinarily would not ask for an extra couple of days but it is material for the amount of time we have got.  We hear what our friends say but in reality we could not make any substantive plans until we saw it pass through the House in the same form it would pass through the Senate.

HIS HONOUR:   Well, I do not mind a day or two but I do want to bring the matter back for directions before me in the week commencing 17 December.

MR DUNNING:   Would, your Honour, the Wednesday be adequate and then a directions hearing on the Thursday or Friday?

HIS HONOUR:   The difficulty is that the constraints that you find yourself under are somewhat similar to the constraints that face other polities. 

MR DUNNING:   I understand.

HIS HONOUR: It is necessary that other potential interveners have an opportunity to consider your notification under section 78B of the Judiciary Act.  That is what I am concerned about.  If you could bring that forward ‑ ‑ ‑

MR DUNNING:   The 78B notice forward?

HIS HONOUR:   Yes.

MR DUNNING:   I do not foresee that being an issue if we brought that forward to the – would the 17th be satisfactory for that or would your Honour prefer it the week before?

HIS HONOUR:   I want to give potential interveners at least three days to consider their position between being notified of this issue and the next directions hearing.

MR DUNNING:   Might I suggest this as a possible compromise.  If we were to deliver our 78B notice on the 17th, our defence on the 19th for a directions hearing on, say, the 20th or the 21st, and in the meantime undertake to at least informally advise the other polities that we hold instructions to challenge the Commonwealth legislation so that at least they have some notice of it prior to getting the 78B notice.

HIS HONOUR: All right. I think if you give that informal advice I will not separate the filing and service of the section 78B notice from the filing and service of the defence, and we could make that Wednesday the 19th, and I would bring the matter back before me on the Friday, which is 21 December.

MR DUNNING:   Justice Gageler, in that regard, whilst I am on my feet, would it be in order for me to be able to participate in that by telephone?  I suspect I will not be near one of this Court’s video facilities.

HIS HONOUR:   We can accommodate you.

MR DUNNING:   I appreciate that.  Thank you, your Honour. 

HIS HONOUR:   Thank you.  And what about the special case, will there need to be an amendment to that?

MR DUNNING:   Your Honour, the way we foresaw it happening was the rules do not seem to specifically consider this situation.  One option would have been a demurrer but that does not work in the timeframes here.  We would have thought that where there is to be a special case and where the polity whose legislation is being challenged has made itself a party by intervention already, the sensible course is for there to be questions in the special case that address the validity of the Commonwealth law with the relevant consequence that our friend for the Commonwealth would have an input into the special case because they need to have an input into that question and that they would need some extra submissions in reply and we would also need to be able to respond to their substantive submissions to our submissions as to invalidity.

HIS HONOUR:   Yes.  You envisage an amendment to the questions.

MR DUNNING:   Yes.

HIS HONOUR:   Would there be any further amendment you think would be warranted?

MR DUNNING:   Beyond the questions?  I think there may be.  We have not come to a final conclusion.  I can give your Honour one illustration.  It would seem that the Commonwealth law would in effect substantially erode, if not entirely erode, real time disclosure in Queensland.  Now, that itself is not a question raised by the plaintiff so it is not an issue that factually has been agitated in the special case.  So, I would foresee things

like that should need to go into the special case.  That said, the parties have had no difficulty in agreeing to those matters and I am sure the Commonwealth will be equally as cooperative as the plaintiff has been, as will the defendant, in endeavouring to have those matters resolved without troubling the Court.

HIS HONOUR:   By Wednesday, 19 December would it be feasible for any draft amended special case as proposed by you to be filed and served?

MR DUNNING:   Yes, your Honour.

HIS HONOUR:   All right.  Is there anything else you wish to say?

MR DUNNING:   No, unless we can assist you further, your Honour, that is it.  Thank you.

HIS HONOUR:   Mr Kirk.

MR KIRK:   Just for your Honour’s information, I was going to note in response to a question your Honour asked, the current version of the special case at page 45, paragraphs 101 to 108 actually summarises the laws around Australia in relation to bans on donations from a specific industry, so that is page 45.  And from my quick review, apart from New South Wales and Queensland, the only other relevant one is Victoria ‑ if your Honour looks at paragraph 103 ‑ which appears to have a prohibition from organisations that hold gambling licences of some kind on making political donations over $50,000 in any one financial year.  So, it is just New South Wales, Queensland and Victoria in a different way that have this type of prohibition, we think, leaving aside a prohibition on foreign entities which Victoria also has and, indeed, New South Wales has too, I think.

HIS HONOUR:   Yes, thank you.  That is helpful.

The orders that I propose to make are as follows:

1.The plaintiff is to file and serve his further amended statement of claim by 4.00 pm on Thursday, 6 December 2018.

2.By 4.00 pm on Wednesday, 19 December 2018, the defendant is to file and serve:

(a)     its defence to the further amended statement of claim;

(b)any additional notice under section 78B of the Judiciary Act 1903 (Cth);

(c)     any draft amended special case.

3.The matter is listed for further directions before me in Sydney at 10.00 am on Friday, 21 December 2018.

Unless there are any comments, those are the orders I now make.  The Court will now adjourn.

AT 9.14 AM THE MATTER WAS ADJOURNED