Spence v State of Queensland

[2018] HCATrans 245

[2018] HCATrans 245

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

FROM SYDNEY BY VIDEO LINK TO BRISBANE AND MELBOURNE

ON TUESDAY, 20 NOVEMBER 2018, AT 9.33 AM

Copyright in the High Court of Australia

MR P.A. HASTIE, QC:   If it please the Court, I appear with MS M.J. FORREST for the plaintiff.  (instructed by ClarkeKann)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, with my learned friend, MR S.J. KEIM, SC, for the defendant.  (instructed by Crown Solicitor (Qld))

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

HIS HONOUR:   Mr Hastie.

MR HASTIE:   Your Honour might have before you a set of draft directions.

HIS HONOUR:   Yes, I do.  Can I ask you about the first draft direction ‑ ‑ ‑

MR HASTIE:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ the proposed amended statement of claim?  What is proposed to be in that?

MR HASTIE:   Your Honour, it relates to the exclusive power argument of my client.  The amending Act has two important parts.  One part is already pleaded, which prohibits property developers donating to political parties.  That amends the State Electoral Act.  The amendments seek to add a complaint about another part of the amending Act, which is Part 5, which amends the Local Government Electoral Act and it has the same effect, that is to prohibit property developers from donating to political parties. The argument with respect to both parts is that they – as the law currently stands – will also apply to federal elections and that is not permitted by the Constitution.

HIS HONOUR:   Yes.  You have three arguments, as I understand it.  One is an implied freedom argument.  In relation to that, do you seek to challenge McCloy?

MR HASTIE:   We would seek to, in the main, distinguish it on the facts, your Honour.

HIS HONOUR:   All right.

MR HASTIE:   On the basis that an important component of the McCloy Case was the existence at that time of facts which gave rise to a legitimate concern that the law was valid and reasonable in its composition.  The facts in Queensland do not demonstrate the same concern about the effect of the donations by property developers.

HIS HONOUR:   You said “in the main”, does that mean that you have a fallback position?

MR HASTIE:   No, it is really the factual matters that we say distinguish the situation in Queensland from the situation in New South Wales.

HIS HONOUR:   Thank you.  In relation to now both Part 3 and Part 5 of the Queensland Act, as I understand it you have two arguments.  One is an intergovernmental immunities argument and the other is a section 109 argument, an inconsistency with the Commonwealth Electoral Act.  Is that correct?

MR HASTIE: It is, with the additional matter that concerns the governmental immunities doctrine which is also that – we submit that there is an exclusive power under the Constitution for the Federal Parliament to legislate with respect to federal elections and that this amending Act also seeks to provide – make laws with respect to the same matter and it is invalid for so attempting.

HIS HONOUR:   Does your argument based on section 109 have as an element that the Queensland law operates in practice or in effect to impair the operation of the Commonwealth Act?

MR HASTIE:   Yes, your Honour.

HIS HONOUR:   Are there constitutional facts that you would have the Court find in order to establish that practical operation?

MR HASTIE:   There are facts that are agreed to in the special case that would be relevant to that submission.

HIS HONOUR:   What I do not see in your pleading as currently formulated is what facts you would be having the Court find based on the material in the special case in order to establish that detraction or impairment.  Is that something you can take into account in the redrafting of the statement of claim?

MR HASTIE:   Yes, your Honour.

HIS HONOUR:   Similarly, in relation to your intergovernmental immunities argument it seems to me that ‑ at least possibly ‑ there is implicit in that some understanding of the factual operation of the Queensland Act that is not spelled out in your statement of claim.

MR HASTIE:   For the same reasons, your Honour, we can deal with that in the amended statement of claim.

HIS HONOUR:   All right, and it would be useful if in the amended statement of claim not only is there a reference to the findings of constitutional fact that you would have the Court make but also there is a particularisation of the material in the special case upon which you rely for those findings to be made.

MR HASTIE:   Thank you, your Honour, we can deal with that as well.

HIS HONOUR:   All right.  Well, thank you for that.  Is that something you can attend to by this Thursday?

MR HASTIE:   I was going to ask, your Honour, perhaps we could extend the date for the filing of the amended statement of claim.  I do not wish to intrude upon the timetable too much but either Friday or Monday if that is convenient with the State.  That might put it a bit too soon for the State.  It would put them back until Friday the 30th for their defence, but if we had our amended statement of claim by Monday morning or Monday at some point it would probably be better.

HIS HONOUR:   All right, thank you.  Now, what is the status of interveners?

MR HASTIE:   The ACT I think responded to the – has intervened and it has responded to the suggested timetable, saying it was not going to appear this morning, and agreed with the suggested timetable.  The Commonwealth is represented and I do not know the situation with respect to Victoria.  They have the draft amended statement of claim but they have not responded with respect to the directions.

HIS HONOUR:   Is it the case that no other polity has indicated an intention to intervene at this stage?

MR HASTIE:   That is correct, your Honour.

HIS HONOUR:   All right.  Well, I understand what you are asking for.  Is there anything further you wish to put to me at this stage?

MR HASTIE:   Yes, your Honour.  Can I inform the Court that last Thursday the Senate passed an amendment to the electoral laws that apply to federal elections.  It is yet to go to the House of Representatives and to be enacted and then proclaimed, but the amendments might be thought to neutralise the attempt by the Queensland Parliament to prohibit property developers donating to political parties insofar as they concern donations which can be used for the purpose of federal elections.

HIS HONOUR:   What am I supposed to do with that information?

MR HASTIE:   Well, we just thought we ought to tell your Honour.  If the Bill is enacted at some point prior to either the submissions being made or, in my client’s case, finalised, it might require some amendments to the pleadings on both sides and maybe even a special case.  Unfortunately, we do not know the answer to that question at the moment but we intend proceeding on the basis – or two bases – one is that we are dealing with the law as it is, not as it might be, and the second basis is that even if there are changes to the law of the Commonwealth there might be all sorts of debates about its effect but we would be still pressing on with my client’s case in all respects.

HIS HONOUR:   Well, your section 109 case would be different.

MR HASTIE:   We would press but it would be different.

HIS HONOUR:   Is the House of Representatives scheduled to sit again this year?

MR HASTIE:   As I understand it, it is, your Honour.

HIS HONOUR:   Yes.

MR HASTIE:   I am not sure what its program is.

HIS HONOUR:   All right.  Well, thank you for that.  Is there anything else, Mr Hastie?

MR HASTIE:   I do not think so, your Honour.  One other thing, your Honour, in terms of the timetable, can I indicate to your Honour that I am being led by Mr Kirk from Sydney who is in the New South Wales Court of Appeal on 4 and 5 February so that if your Honour were to set a sittings down as we would ask in the February sittings then we would ask if it was possible to avoid those two dates.

HIS HONOUR:   Mr Hastie, you are asking a great deal with this timetable already.  The convenience of counsel is not a factor that will be taken into account.

MR HASTIE:   Thank you, your Honour.

HIS HONOUR:   Thank you.  Mr Dunning.

MR DUNNING:   Thank you, your Honour.  Can your Honour hear me?

HIS HONOUR:   Yes.

MR DUNNING:   Your Honour, I understand that Mr Tran appears on behalf of the Commonwealth today.  I am not sure whether he can shed any illumination on the topic Mr Hastie just mentioned.  For what it is worth, our understanding is the House of Representatives is due to sit next week and the following week which, as I understand it, means there is a real prospect that these laws will be passed…..convenience for your Honour but I wondered whether it might be convenient to hear from Mr Tran in case he may be able to shed some illumination on that topic?

HIS HONOUR:   Well, yes, thank you, Mr Dunning.  Is there something else that you wish to say in relation to the matter or are you suggesting that I hear from Mr Tran first and then come back to you?

MR DUNNING:   I was suggesting that, your Honour, yes.

HIS HONOUR:   Well, we will do that.  That is a good suggestion.  Mr Tran.

MR DUNNING:   Thank you, your Honour.

MR TRAN:   Your Honour, I cannot add too much illumination.  I can confirm for your Honour and the parties that the House of Representatives are to sit next week and the week after.  Those are the only sitting weeks remaining this year.  There has been a public indication that the government will press for this Bill to be enacted into law this calendar year but beyond that I cannot assist the Court or the parties any further.

HIS HONOUR:   Yes.  All right.  Mr Dunning.

MR DUNNING:   Thank you, your Honour.  Your Honour, the defendant’s position is it can do no more obviously than meet the cases framed against it on the law as it stands from – at the time it is meeting it.

HIS HONOUR:   Yes.

MR DUNNING:   The amendments to the statement of claim we canvassed with our learned friend, Mr Hastie, we understand do not present any difficulties to ourselves.  We would like the time for the delivery of the

defence to be enlarged to mirror the extension for the statement of claim…..I do not need to go into.  Beyond that, it is really ‑ ‑ ‑

HIS HONOUR:   Well, can you give me a date then for the proposed defence?

MR DUNNING:   3 December, your Honour.

HIS HONOUR:   All right.  Mr Dunning, it seems to me that nothing may ultimately be lost and a lot of confusion might be avoided if we went no further at the moment than providing for the amendment of the pleadings on the existing state of the law and then set the matter down for directions towards – well, either at the end or towards the end of the scheduled House of Representatives sittings and see where we are at that stage.  I think that would not make the timetable proposed for submissions impossible to meet and it may avoid a lot of confusion and duplication of paperwork.  Do you have a reaction to that?

MR DUNNING:   Your Honour, we would respectfully endorse that proposal.  Given that there is the real prospect that there will be a change in the law there does not seem to be any point in as it were entrenching the position any further than necessary.  It may become…..materially altered.

HIS HONOUR:   Yes.  Mr Tran, can I go back to you?

MR TRAN:   Yes, your Honour.

HIS HONOUR:   If I were to do that what would be an appropriate date in December to relist the matter for directions?

MR TRAN:   I think, your Honour, that an appropriate date is likely to be 3 December, which is the start of the second week of the sitting period, and perhaps if the Commonwealth could liaise with the parties involved and with your Honour’s chambers should a different date turn out to be preferable; for example, if in the first sitting period we have greater clarity.

HIS HONOUR:   Thank you.  Mr Tran, was there something further you wished to say about the matter?

MR TRAN:   There was not, your Honour.  Thank you.

HIS HONOUR:   Thank you.  Mr Hastie, you have heard what I have suggested.  The suggestion, I think, does not jeopardise your proposed timetable in that you can be working on your written submissions on the existing state of the law.  Do you have anything to say in opposition to me making directions at this stage concerning only the amendment of the

pleadings and then bringing the matter back before me on, say, Wednesday, 5 December?

MR HASTIE:   No, your Honour, that seems like a sensible course, with respect.

HIS HONOUR:   All right, then that is what I will do.  I propose to list it for further directions before me in Canberra at 9.00 am on Wednesday, 5 December.  So the only directions that I make at this stage are:

1.The plaintiff is granted leave to file and serve an amended statement of claim on or before Monday, 26 November 2018.

2.The defendant is to file and serve an amended defence on or before Monday, 3 December 2018.

3.The matter is listed for directions before me in Canberra at 9.00 am on Wednesday, 5 December 2018.

Thank you, gentlemen.  The Court will now adjourn.

AT 9.53 AM THE MATTER WAS ADJOURNED