Local Government Assoc of Qld (Inc) v State of Qld, Ex parte A-G of Qld B81/2001 [2001] HCATrans 508 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B81 of 2001

LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND (INCORPORATED)

Applicant

and

THE STATE OF QUEENSLAND

Respondent

Ex parte: THE ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND

Application for removal pursuant to section 40 of the Judiciary Act 1903

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 1.56 PM

Copyright in the High Court of Australia

MR R.I. HANGER, QC: If the Court pleases, I appear with MR K.N. WILSON for the Local Government Association, your Honour. (instructed by King & Company)

MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: If your Honour please, I appear with MR G.R. COOPER for the Attorney-General for the State of Queensland and for the State of Queensland, your Honour. (instructed by the Crown Solicitor for Queensland)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, I appear with MR G.A. HILL, intervening on behalf of the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor)

HIS HONOUR: I apologise that you have been kept waiting, but it was thought better to conclude the special leave hearings before we embarked on this one.

MR HANGER: Not at all, your Honour.

HIS HONOUR: Who is the moving party? I suppose formally Mr Keane you are, that the matter be removed into this Court, but it would seem under the Judiciary Act that that must follow as of course.

MR KEANE: That seems to be the case, your Honour.

HIS HONOUR: The matter will be removed into this Court and the question is whether the matter should remain in the Court or be remitted to the Supreme Court of Queensland so that something can be done. Relevant to that is whether this Court would be in a position to deal with the substantive question before, is it next Thursday, which is the date last date for nomination for the federal election?

MR KEANE: I understand that is so, your Honour.

HIS HONOUR: I have made inquiries of the Chief Justice and other Justices of the Court to see whether it would be feasible to list the matter before that date and the answer is that it would not, and indeed, it would not be feasible to list the matter before the end of the year. All hearing dates for this year have been, at this stage, taken. The question of what is to be done, the cause being in this Court, really has to work its way out to conclusion on that footing. What do you submit should be done? You want to keep it here and, as I understand it, the Association wants to have the matter remitted to the Supreme Court of Queensland.

MR KEANE: That is so, your Honour.

HIS HONOUR: Go ahead, tell me why you think it should be remitted here even though nothing will be done before the end of the year. Would it not be better to have a decision from the Supreme Court of Queensland? Experience teaches that many problems in litigation go away once people have had their day in court. They have their fight, they argue their case, they get a decision and often, low and behold, it evaporates. We are never troubled.

MR KEANE: Your Honour, one understands that in the case of the usual run of litigation. Of course, in this case, the question is whether legislation of the Parliament is invalid for constitutional reasons. The prospects are, with respect, that that question will only be finally and definitively determined in this Court.

HIS HONOUR: That seems probable. I would be willing to think that that was probable, but over a long life in the judiciary you do find that cases go away. People feel exhausted, they run out of money, they lose incentive, and they do not want to go on with the case, or they accept the umpire's decision. If that is even a small possibility and if there is no possibility that the matter can be heard in this Court, why should one not take that step of remitting the matter and seeing what the Supreme Court of Queensland finds?

The other consideration that I would mention is that then at least this Court, if subsequently it does come to the matter, would have the advantage of reasons from the Supreme Court of Queensland and the time will therefore not have been completely wasted.

MR KEANE: Well, your Honour, the Court is always assisted, no doubt, by having reasons from a court below. That does not seem to be, with respect, a consideration of particular weight if one looks at the statements of principle which we have set out at paragraph 27 of our summary of argument on page 7. There we have referred to the observations in the majority judgment in Attorney-General v Commonwealth Savings Bank and your Honour will see that those observations are made that:

removal will result in an abortive hearing in the Court of Appeal . . . The absence of a discretion to refuse removal tells against the exercise of a discretion, if any, in the circumstances to remit the appeal, once removed, back to the Court of Appeal for determination. In any event, it seems likely the parties would ultimately seek a determination of the appeal in this Court. For these reasons the matter will not be remitted to the Court of Appeal.

We also rely upon your Honour's observations in Crane v Commissioner of Stamp Duties, which we have set out following the citation in the Commonwealth Savings Bank Case.

Your Honour, in this case the extent of the assistance that the Court will have is, with respect, limited and we would submit to your Honour that remitter, while usually a course taken by the Court to aid the efficient administration of justice, usually occurs where there are facts that need to be found. In this case, your Honour will appreciate that there are no factual issues. The only issue to determine is the validity of section 224A(b) of the Queensland Act and, in that regard, the challenge to the Act is on constitutional grounds. So that, in our respectful submission, if it is true to say that the likelihood is that the case will ultimately come to this Court, then it is, in our respectful submission, preferable that there not be a divergence of views about the validity of the Act one way or the other.

HIS HONOUR: There might be a divergence in this Court.

MR KEANE: Well, there might be, your Honour, but it will be decisive, which is not the case in any court other than this Court.

HIS HONOUR: The Court does find it useful to have decisions of the Supreme Courts of the States and the Federal Court and Full Family Court. Indeed, earlier this week I was complaining about the migration cases and the fact that we are basically being turned into a trial court in a lot of these migration matters by reason of amendments to the Migration Act.

Now, if we can have the benefit in time that is not otherwise being lost of a reasoned consideration of the matter by judges or a judge of the Supreme Court of Queensland and if in the event that the matter is not disposed of in that court the case comes to this Court and the matter would be given expedition in this Court, then really nothing has been lost and something has been gained.

MR KEANE: Well, what your Honour says in terms of something has been gained in terms of assistance to the Court may be true. What we note from the passages in the judgments which we have given your Honour - and we do not understand these statements of principle to be gainsaid - is that it has never been suggested that the benefit of looking at the reasons of a court below on a constitutional question is a reason for making a remitter in circumstances where it is a matter of right under section 40(1) for the Attorney to bring the case to this Court to have this Court decide once and for all the validity of the State legislation which is challenged.

Your Honour, as we say, we do not understand it is being suggested that it is necessary for the due administration of justice that the matter be remitted. As we understand it, it has nothing to do with the due administration of justice. What it has to do with is with a situation of urgency that our learned friends, the applicants, apprehend in relation to which we should say a couple of things.

The first is that the material that we have seen does not indicate the extent of the problem that is to be solved. For example, your Honour, we do not know how many potential candidates may be affected. The point we are making is - - -

HIS HONOUR: We will never know because one of the complaints is that by reason of the provision in the Act there will be people who will be frightened off from offering themselves to the electors of the Commonwealth.

MR KEANE: But your Honour understands that our learned friends bring this application on behalf of local government. No doubt our learned friends know how many people are facing this quandary. No doubt our learned friends - - -

HIS HONOUR: Not necessarily, they may be people who have not communicated it, are just pondering deeply in their hearts as to whether they will offer themselves to the electors and - - -

MR KEANE: Your Honour, that may be so and to the extent that our learned friends' client has brought this application without consulting those who might be affected, then in terms of the urgency of it, your Honour might either ask our learned friends or your Honour might proceed on the footing that there are not any particularly individuals who actually will be affected.

HIS HONOUR: When was the section inserted in the Local Government Act? I noticed it has a capital A, so it is - - -

MR KEANE: Your Honour, it came into operation on 25 May this year.

HIS HONOUR: So it is relatively new. This is the first federal election that it affects?

MR KEANE: It is and the proceedings were commenced on 1 October, your Honour, so that the statute was on the books for some months in circumstances where an election was in the offing. We mention this simply because - - -

HIS HONOUR: Would there have been an interest prior to the calling of the election? I suppose if a particular local government councillor said, "I am contemplating", that would probably have been enough to provide the interest to move this Court?

MR KEANE: Certainly, your Honour.

HIS HONOUR: But you do not challenge the interest of the Local Government Association of Queensland to bring these proceedings?

MR KEANE: No, your Honour, no, and the interest that they assert as giving them standing is an interest that they always had and an interest which would have always afforded them a basis for making this challenge. The problem which has arisen and in relation to which this Court is asked to remit the matter to the Supreme Court, notwithstanding the Attorney's right to have the challenge to the legislation determined by the Court, the basis for that application seems to be nothing other than to have a decision of a court, any court, certainly not a final and a - - -

HIS HONOUR: It is not any court, it is a constitutional court, it is the Supreme Court of Queensland.

MR KEANE: Quite, your Honour, quite, your Honour, but certainly not the court that will decide the matter once and for all to have that done in circumstances of urgency where the urgency arises, firstly, as a matter of their own choice and, secondly, in circumstances where the nature of the urgency is not shown to the Court in terms of whether there is a real significant problem for those who might be minded to nominate in terms of how many there might be and whether it is really a problem, whether it is a significant problem. Is it one or two possible candidates, is it hundreds?

Now, in circumstances where the court is asked to exercise its - - -

HIS HONOUR: But the interest that they rely on is not just the interest of their members. They also raise the public interest in respect of the electors of the Commonwealth having the right to choose from whoever offers themselves and is qualified under federal legislation and they also raise a factor which is certainly relevant to my thinking in terms of expedition, including in this Court if need be, and that is that there will be or there may be some people who are disqualified by the section and then by-elections are held and positions are filled which, by reason of subsequent decisions of the Supreme Court or this Court, might find were themselves invalid and that the councillor still holds office.

MR KEANE: Your Honour, it is because of the possibilities of those kind of events that it is our submission that one and one final determination is preferable, rather than having the section limping along and the necessity to ask what does one do about people who have pursued a candidacy while holding office.

The other thing we should mention to your Honour is that of course there is nothing in the provision that is attacked which seeks to attach an extra qualification to a candidate for federal office. It is simply the case that under State law, these local government offices being the creature of State law, those offices are vacated once a person nominates for federal office. There is no question of any impediment or any extra qualification being required for nomination.

HIS HONOUR: I understand that submission and I read it and that may be the correct legal analysis but, on the other hand, one can appreciate that from a point of view of practicality it does put a certain group of citizens to an election which other citizens do not have to make. The question is, is that compatible with the scheme and provisions of the Commonwealth Electoral Act or is it not? In practical terms I can understand that people would say it may be that the analysis is as the Solicitor for Queensland says, but in practical terms it is going to put them out of the race.

MR KEANE: Your Honour, nothing would put them out of the race. All that would happen would be that they would nominate and run and their office would be vacated. The office they hold under State law would be vacated. The point we make though, with respect, is that this issue, in so far as it affects those individuals, may or may not be significant. In so far as it affects the applicant whose standing derives from a general commission to represent those interests, then in relation to that we say that to ask the Court to remit the matter because of the situation of urgency is to invite the Court to act on a consideration which is, with respect, extraneous to the power to remit, the power to remit being one which, on the statements of principle that we have put before your Honour, is one which we would submit is first of all not exercised to deny the Attorney's right and, secondly, not exercised to deny the Attorney's right to have the matter determined once and for all in this Court, bearing in mind it is a challenge to the validity of the legislation of the Parliament.

Thirdly, your Honour, it has nothing to do with the efficient disposition of the case, it never having been said that it is a reason for granting remitter that the Court would send it back to other courts which have been seized of it and from which it has been removed to get the benefit of their reasons. That has never been suggested as being an appropriate basis for exercising the discretion under 42 to send it back once it has been removed.

HIS HONOUR: No, I would not think that would on its own be an appropriate basis but, if you start from the premise that the matter cannot be heard in this Court, you add the premise that it is normally of assistance to this Court to have the opinion of a Supreme Court of a State. If you take into account that the earliest the matter could be listed in this Court would be early in the new year, then, if you have those considerations with the fact that section 42, the remitter section, is part of Part VII of the Judiciary Act, along with section 40, then the provisions are supposed to work together, one would infer, and if you take all those considerations together, it seems to warrant using the time beneficially and of assistance facing up to the reality that ultimately the matter will come in all probability to this Court. You do not contest, as I understand it, that this Court has a power of remitter? Your point relates to the considerations that are relevant to the exercise of that remitter in the particular case consistent with section 40(1) that it is an Attorney-General who, virtually as of right, has brought the matter into this Court.

MR KEANE: Quite, your Honour, and where the matter concerns a challenge to State legislation which, in our respectful submission, the Attorney is entitled to have pronounced on by this Court and where the only discretionary considerations that are identified against it are those of urgency for the applicant where the real urgency is, in our respectful submission, shadowy and, to the extent that it exists at all, is a self-imposed urgency which arises because though the statute has been on the books for months, these proceedings were brought only on 1 October. In our respectful submission, those are not good discretionary reasons for exercising the discretion under section 42 to defeat the right in section 40. Those are our submissions, if your Honour pleases.

HIS HONOUR: Thank you, Mr Solicitor. I think we had better hear from the applicant.

MR HANGER: Your Honour, I think it is proper that I respond to what my friend said about the actual facts. I was going to put this before you today anyway because our submissions had changed slightly from the outline, and that is this. I cannot say to you when requesting a hearing within a week, that there are people sitting at home now who are trying to work out whether or not to stand. That is to say, people who say "I cannot make a decision unless the High Court has decided it". What I can say to you is this, that we have - and I will not use them unless my friend wants me to or your Honour wants me to - there are in fact two people who are nominating, two councillors. One is a mayor - and they are in fact running the risk that they will not be elected and that they will lose their job - and one is a councillor who will stand for the federal election. They have been endorsed by the respective parties.

HIS HONOUR: If their point is good and the section is invalid under the Constitution then presumably they will, if that is so held, in fact retain their office unless some doctrine of de facto officers comes into change things. It will be as if the section was not in the Local Government Act and therefore it can no affect upon them.

MR HANGER: That is so, and if they win the election then their office is vacated by virtue of another section in the Local Government Act. So in fact, at present, there are two people definitely affected. We obviously cannot say how many people are presently making decisions or have made decisions to not stand because of the provisions of this legislation.

We accept the legal propositions that our friends advance. We do not argue with the principles. We say this is a proper case to remit it to the Supreme Court.

Your Honour, the timetable that must be observed is this. The federal election is on 10 November. The latest date for the publication of a notice calling for nominations for by-election is 20 November. The latest possible date for the close of nominations for a by-election is 30 November, and the latest possible date for a by-election is 22 December. When I came here today I was going to ask if the Court could hear the matter say, by 20 November. I do not want to waste time if there is no chance of that, but Mr Keane and myself agree that it would take half a day and probably not more, it is a fairly short point, if that was of any relevant at all to your Honour.

If, indeed, it cannot be heard by that date then we pursue with the application to remit, and we rely on these matters: that, in the meantime a by-election has to be arranged. As soon as these people nominate the time starts to run. The electors are without representation and in one case that relates to a mayor who is standing for the federal election. Decision making in this interim period is going to be hampered. One can envisage the possibility of decisions being made by a majority of one, and when the relevant councillor is absent, the local councils do not know where they stand. The urgency is not just an urgency from the point of view of the individual but from the point of view of the local government electorate, and local government would be severely inconvenienced in this interregnum period between now and the Christmas period.

It is for those reasons that we urge that the matter should be heard speedily and remitted to the court and of course the High Court, if it ever comes to the High Court, has the benefit of the research done by the Supreme Court. We would, with respect, adopt one of the comments your Honour made, that cases have a habit of going away once there is a determination and someone looks at it and says that is obviously a correct determination. One would hope that this was such a case because while it is an important issue it is not an earth shattering issue, so we would urge the Court to take the unusual step of remitting it.

HIS HONOUR: Yes. Yes, Mr Solicitor-General for the Commonwealth.

MR BENNETT: Your Honour, in one respect, as your Honour will see in a moment, what has just been said by my learned friend Mr Hanger leaves me without instructions on one aspect of the matters I will be putting to your Honour. But the first matter is that we will be supporting my learned friend Mr Hanger at the hearing of the substantive arguments on the constitutional issues. We will be arguing for invalidity of the stated provision. The second matter is that we would have supported an application that this Court hear the matter before next Thursday. That, I understand, is impracticable and there is no point in developing that.

I had instructions that if the matter could be heard in Queensland and determined before next Thursday, we would not oppose a remitter for that purpose but that, if it could not, the matter ought not to be remitted over the objection of the Attorney who has removed it. In other words, we strongly support what your Honour said in the case which has been referred to by my learned friend Mr Hanger in GE Crane and Sons - - -

HIS HONOUR: I think it was the Solicitor for Queensland.

MR BENNETT: Yes, I am sorry, your Honour, it was. It was my learned friend Mr Keane.

HIS HONOUR: Mr Hanger passed over it rather lightly.

MR BENNETT: Yes, he did, your Honour, but we rely on what your Honour said in Crane and Sons. The purpose of - - -

HIS HONOUR: I am still of the opinion that I expressed in Crane but it did allow for an exception, as I think it has to, because the statute talks of "may" and you have to work section 42(1) with section 40(1). They are both part of the Act and, therefore, they have to somehow work together. It would be a very, very rare case, I would think, that the matter coming here as of right would be remitted, but the possibility must be allowed, I think.

MR BENNETT: Yes. Your Honour, the point on which I do not have instructions is the matter which we learnt of today for the first time - - -

HIS HONOUR: Yes, the by-elections.

MR BENNETT: - - - concerning the November dates and the possibility of it being heard in Queensland before those dates. I therefore make no submission as to that beyond saying this, that if the matter is remitted because of the urgency and because of the desirability of obtaining a hearing before some specific date, whether it is next Thursday or a few weeks, the Court should, in our respectful submission, indicate that if a result cannot be obtained by that date, it would not be inappropriate for the Attorney of Queensland to remove the matter to this Court. In other words, the remitter should be, in effect, a remitter which is conditional on the purpose being achieved.

HIS HONOUR: I am not sure that there is power in the Act to impose that condition on the remitter, but I certainly understand what you say. There is an element of delicacy here that one would not wish to remit to a Supreme Court of a State which is a constitutional court and then, as it were, encourage the Attorney for Queensland, if he sees the way the wind is blowing, to immediately rush up here again.

MR BENNETT: Of course not.

HIS HONOUR: On the other hand, if the purpose of remitting, which is to use valuably the time in a way that may be beneficial to the administration of justice and to the parties and ultimately to this Court if the matter comes to this Court, cannot be achieved, then an application again to bring the matter back to this Court would in those circumstances not be inappropriate.

MR BENNETT: That was what I was seeking, your Honour, that sort of indication, because we do submit this, that the argument based on the desirability in this Court of having the assistance of another court before the matter comes is something which is present in every case where there has been a removal as of right followed by an application for remitter. So, that consideration cannot prevail over the considerations your Honour referred to in Crane's Case and, as I have indicated, to the extent that urgency is the justification for the remitter, the indication your Honour has suggested would prevent any problem arising.

So, if, for example, the matter were to be remitted and next week it were to become apparent that either the parties or the Queensland Supreme Court were unable to deal with the matter prior to a vital date, there would be no discourtesy to this Court in the Attorney for Queensland remitting again and coming back to your Honour for the earliest date which is appropriate.

HIS HONOUR: Well, I think formally under the Act it is an application to remove but the Court is instructed by Parliament, assuming this to be valid, to act upon it but it still is in the form of an application to this Court for remitter.

MR BENNETT: Yes, there is also, I suppose, the procedural issue which we have not directed our attention to as to whether, in those circumstances, the appropriate course would be to invite your Honour to reverse the remitter or for there to be a fresh removal. That is a matter which might have to be considered.

HIS HONOUR: Yes, that might depend on how events unfold.

MR BENNETT: Yes, it may.

HIS HONOUR: But a matter in my mind - tell me if this is not relevant - is that if there is going to be some inconvenience to councils in Queensland under the Queensland law with the conducting of by-elections, then, if this Court cannot in the time that is relevant to that inconvenience itself resolve the inconvenience, it is better that the Supreme Court of Queensland should do what it can to do so. Now, is that inconsistent with sections 40 and 42 or not?

MR BENNETT: That is the issue on which I have no instructions to put anything to your Honour.

HIS HONOUR: I see, yes. Very well, perhaps I ought to ask Mr Keane that then. Thank you very much, Mr Solicitor. What do you say on that last point, Mr Solicitor for Queensland, that if we cannot cut the Gordian knot by next Thursday, or even by the dates in November and December when the by-elections would be held, if any, that in principle it is desirable that the highest court of Queensland should do what it can to resolve the issue, even if there is only a small prospect of its succeeding. It is a matter of respect for the constitutional Supreme Court of the State of Queensland.

MR KEANE: Your Honour, in so far as that concern arises from the inconvenience of holding by-elections, with the greatest respect to your Honour, the inconvenience of the necessity for by-elections is an inconvenience that flows from the law the Parliament has passed, so that while we accept that the Supreme Court of Queensland is a constitutional court, our submission to your Honour is that it is not an appropriate consideration to move the court to remit that there will be inconvenience flowing from by-elections. That is precisely the sort of inconvenience which, so far as the peace, order and good government of Queensland is concerned, the Parliament has countenanced. The second point - - -

HIS HONOUR: That is true, but the Supreme Court of Queensland is part of the judicature of the Commonwealth, and the days when the Supreme Courts and the other courts were held out of constitutional decision-making have gone. The Constitution permeates the law, and it is available in every court of the land. So that if the Supreme Court of Queensland can be given the opportunity to address an issue, it may be that it would uphold the validity of the Queensland law, but it may be that it would not.

MR KEANE: Quite, your Honour.

HIS HONOUR: At least then there is a decision which may satisfy the parties when we in this Court cannot satisfy them.

MR KEANE: Well, your Honour, it is, in our respectful submission, true to say that the Supreme Court of Queensland is a constitutional court. As your Honour says, the Constitution permeates it and informs its structure. Nevertheless, these implications are of a second order when compared with the express provisions of section 40, which provide that as of right the Attorney may remove the matter into this Court. In that regard, in the terms of the due administration of justice, we would take the point made by our learned friend the Solicitor for the Commonwealth that the consideration that the Court would be assisted by the reasons of the court below cannot be a consideration. Our learned friend says a consideration of much weight, we would submit, cannot be a consideration at all, because it is distinctly antithetical - - -

HIS HONOUR: I can understand that it cannot be a consideration in the sense that the removal section, section 40(1), contemplates a right to bring the matter into this Court and therefore to bypass the courts below, and therefore it cannot be of itself a reason but, if you add the ingredient that we cannot deal with the matter in the interim, then it seems to me that if some good use can be made of the time, it can in those circumstances become part of the matrix of factual circumstances that I can take into account.

MR KEANE: And, your Honour, once one starts from the premise that the High Court cannot deal with the matter, one then asks: is that one of the exigencies of the due administration of justice? In that case there would, with respect, be force in what your Honour says. But in this case, the inability of the Court to deal with it is not one of the exigencies of the due administration of justice. It is a state of affairs that comes about because these proceedings were not commenced until several months after the legislation was on the books and at a time when there is the problem in having a decision, a once-and-for-all decision, from the court to whom we are entitled to go to get it.

Our point, your Honour, is that the exercise of the discretion under section 42 should be controlled by reference to considerations of the due administration of justice, not simply urgency which arises because of the particular circumstances of the parties, all the more so where that urgency arises because the party with the interest seeking to pursue it with urgency has allowed that state of affairs to come about when it could have proceeded and avoided the problem. It is for that reason that we submit it is not a question of the exigencies of the due administration of justice, moving the court under section 42.

As we have said, your Honour, and we will not say it again save to summarise, that to the extent that there will be inconvenience and expense should there by by-elections that turn out to be unnecessary, then that consideration is a matter of the peace, order and good government of Queensland and it is a consideration that the Parliament of Queensland has been content to accept.

HIS HONOUR: If I were minded to remit the matter to the Supreme Court of Queensland, would it be appropriate to remit the matter to that court leaving it to the internal processes of that court to determine at what level in the court it would be decided, or would it be appropriate to remit the matter to the Court of Appeal of the Supreme Court of Queensland?

MR KEANE: Your Honour, I think, with respect, in terms of the organisation of the personnel it might be better to leave it to the court, and my learned friend - - -

HIS HONOUR: I think that may be that I am empowered to do by the remitter provision.

MR KEANE: In any event, I think that is so, your Honour.

HIS HONOUR: It is to the court from which it was removed, so it is not to any part of the Supreme Court.

MR KEANE: The Supreme Court, that is right, your Honour.

HIS HONOUR: I assume there is a power of referral of matters from a single judge to the Court of Appeal of Queensland in the event that the matter were listed before a single judge of the Supreme Court of Queensland. Is there such a power, to refer matters.

MR KEANE: Yes, your Honour, there is.

HIS HONOUR: Very well, thank you for your assistance, Mr Keane.

MR KEANE: Thank you, your Honour.

HIS HONOUR: Pursuant to the Judiciary Act (Cth) the Attorney-General of the State of Queensland has applied for an order removing into this Court a cause pending in a court of a State, namely, the Supreme Court of Queensland. He has done so on the ground that the cause arises under the Constitution and involves its interpretation. By virtue of s 40(1) of the Judiciary Act 1993 , this Court is obliged, on an application by an Attorney-General of a State, "as of course" to remove the matter so requested.

The respondent to the application has applied, in the given circumstances, for the cause so removed to be remitted back to the Supreme Court. Accordingly, this application raises questions under the Judiciary Act concerning the practice of this Court in relation to removal and remitter of causes involving constitutional questions.

The background facts

The cause involves proceedings commenced in the Supreme Court of Queensland by a statement of claim filed by the Local Government Association of Queensland (Incorporated), ("the respondent"), against the State of Queensland ("the State"). The legal issue raised by the respondent involves its contention that the Local Government Act (Q), s 224A(b) is invalid under the Constitution by reason of its inconsistency with s 44 of the Constitution and with provisions of the Commonwealth Electoral Act 1918 (Cth), ss 162, 163, 164 and 327.

The proceedings thus raise an inconsistency question under s 109 of the Constitution. The State does not contest that this is so. Notices have been given by the Attorney-General of the State in accordance with the Judiciary Act 1992 , s 78B. The Attorney-General of the Commonwealth has intervened on this application. Putting it broadly, on matters of procedure, he supports the Attorney-General of Queensland. But on the ultimate matter of substance, he supports the respondent.

It follows from the foregoing that I am obliged to order removal of the cause into this Court. I so order. It is unnecessary, and it would be inappropriate, for me to pronounce on the merits of the constitutional issue. I have merely to be satisfied that s 40 of the Judiciary Act is engaged, as it clearly is.

The Federal Parliament has been dissolved. Pursuant to s 32 of the Constitution, a federal general election has been appointed to take place on Saturday, 10 November 2001. In such circumstances two questions arise in consequence of the removal order that I have made. The first is the expedition of the hearing of the cause in this Court. The second, which is connected, is whether, in the exceptional circumstances that I will recount, the proceeding should be remitted to the Supreme Court of Queensland to proceed to a decision or should be retained in this Court, as would normally be the case.

So far as expedition is concerned, there is no doubt that the issue raised is a somewhat urgent one. Section 224A(b) was inserted in the Local Government Act by amendment taking effect on 25 May 2001. It provides:

A councillor ceases to be a councillor if-

(a) under the Electoral Act, section 88(3), the councillor becomes a candidate for an election as a member of the Legislative Assembly; or

(b) under the Commonwealth Electoral Act 1918 (Cwlth), section 176, the councillor is declared to be a candidate for an election".

If the councillor is elected to the Federal Parliament, by s 221(f) of the Local Government Act, he or she is immediately disqualified from his or her office as a councillor. The amendment now incorporated in s 224A(b) brings the disqualification forward. It attaches the consequence of disqualification from such office to nomination as a candidate for election, whatever the ultimate outcome of that election.

The respondent submits that the provision in s 224A(b) acts as a legal sanction on a councillor of a local government authority in Queensland, discouraging him or her from nominating for election to the Federal Parliament. It says that this is a sanction inconsistent with the provisions of the Constitution and the Commonwealth Electoral Act which sets out the disqualifications from eligibility to be a candidate that were approved by the Federal Parliament. It argues that the provision of the Local Government Act imposes both a practical and legal burden upon some citizens which will have the consequence of discouraging them from exercising their rights under federal law. It also submits that electors should have a relevantly unrestricted pool of candidates from whom to select their members and senators and that this too is governed by federal law and cannot be diminished by a State law.

The Attorney-General of Queensland submits that the provision in the Local Government Act does not prevent a councillor from nominating. It merely provides for certain consequences of the councillor's doing so.

Impossibility of early hearing of the cause removed

The constitutional question raised by the respondent is arguable. Of its nature it could only finally be decided in this Court. In an ideal world that would be what would happen. It would happen before Thursday, 18 October 2001, which is the day upon which nominations of candidates for the coming federal election will close. If the cause could be finally determined by this Court before that day, it would put to an end the controversy. It would ensure that the controversy was finally disposed of.

I have consulted the Chief Justice and the other Justices of the Court to see whether it would be possible to convene a special sitting of the Court to resolve the issue within that time frame. The result of my inquiries is that it is not possible. There are no hearing dates available in this Court before the end of the year. Accordingly, it would not be possible for this Court to hear the cause before 18 October 2001. Nor would it be possible for this Court to hear the cause before the dates upon which by-elections, necessitated by any vacation of the office of a councillor, took place, ie, at the latest, 1 December 2001. Even less would it be possible for the Court to have decided the matter within those time constraints.

If the proceedings ultimately result in upholding the respondent's constitutional submission, the consequence would be that any purported disqualification from office of a local councillor in Queensland might have no legal effect. I appreciate that this is no answer to the inhibition which the present law is said to work on those who might not be willing to take the risk and, therefore, might refrain from nominating as candidates for election to the Parliament, as otherwise they could. Unfortunately, this Court is not in a position to solve that problem. To some extent this outcome is a result of the delay in the commencement of the proceedings. The amendment to the Local Government Act commenced on 25 May 2001. It was well known that a federal election had to be held before the end of this year. The proceedings could have been commenced earlier.

Nevertheless, the possibility of later uncertainty and resulting disqualification of still further councillors of local authorities who have filled vacancies resulting from the operation of s 224A of the Local Government Act, makes it desirable, in my view, that the hearing of the issues in the cause be commenced as quickly as possible. How can that be done in circumstances where this Court cannot commence a hearing before 18 October 2001 nor conclude a hearing before 1 December 2001?

The power and occasion for remitter of the cause

Under s 42(1) of the Judiciary Act, this Court has the power to remit proceedings to the Supreme Court of Queensland. However, where a cause is removed into this Court, effectively as of right, remitter is not, by any means, automatic. Indeed, in my view, it is subject to the constraint inherent in the provisions of s 40(1) of the Judiciary Act. I expressed my opinion on that constraint in GE Crane and Sons Ltd v Commissioner of Stamp Duties; Ex parte Attorney-General (Qld) (1997) 72 ALJR 75 at 77, when I said:

Whilst I do not doubt that s.42(1) of the Judiciary Act would empower this Court, having removed the matter, to remit it immediately in whole or part to the court from which it was removed, I think that such an order would rarely be made where the matter has been removed upon application by or on behalf of an Attorney-General as provided in s.40(1). The right of a State or Territory (or of the Commonwealth itself) to have this Court decide a constitutional question arising in an Australian court, suggests that such a course would rarely, if ever, be taken if the constitutional question remained alive and the Attorney-General in question sought its determination in this Court.

It is not necessary for me to consider in what circumstances, if any, an order of remittal would be made because, in my opinion, it is not appropriate that it should be made in this case. A constitutional question having been raised by the Court of Appeal and having now been embraced by the Crane interests, it seems to me that on the application of the Attorney-General and the matter now being before the Court, this Court should determine the constitutional question and should determine it for itself.

To somewhat similar effect were earlier remarks by Mason, Wilson, Brennan, Deane and Dawson JJ in Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; (1986) 160 CLR 315 at 327. There, their Honours said:

Although it is a matter of concern to us that removal will result in an abortive hearing in the Court of Appeal with a consequential waste of time and money, we have no discretion to refuse removal of the Attorney-General's application. The absence of a discretion to refuse removal tells against the exercise of a discretion, if any, in the circumstances to remit the appeal, once removed, back to the Court of Appeal for determination. In any event, it seems likely that the parties would ultimately seek a determination of the appeal in this Court. For these reasons the matter will not be remitted to the Court of Appeal.

It will be noted that in the last cited passage, the joint judgment of the Court reserved a question as to whether any discretion existed to remit a cause once it had been removed into this Court on an Attorney-General's application. Before me, the Solicitor-General of Queensland did not contest that a discretion exists. It appears to exist in the language of s 42(1) of the Judiciary Act. Furthermore, that section must be read alongside s 40(1), but not so as to remove altogether the power of remitter which is also provided by the Judiciary Act. Because the power of remitter is not contested, I will continue to assume, as I did in Crane, that a residual discretion exists.

Exceptional circumstances warrant remitter

The discretion to remit is not one that could be exercised simply to procure the advantage of a reasoned decision of a court from which the cause was removed. The absence of a reasoned opinion of such a court is a consequence inherent in the process of removal. Exceptional circumstances therefore have to be shown to warrant remitter once a matter is removed into this Court on an application by or on behalf of an Attorney-General. Such a requirement is not only observed out of respect for the constitutional scheme which is provided by s 40(1) of the Judiciary Act. It is also required out of respect for the constitutional position of a State or Territory of the Commonwealth and of the Commonwealth itself and the role of this Court as the ultimate arbiter of constitutional controversies.

Having said this, I have concluded that there are exceptional circumstances in this case to warrant remitter to the Supreme Court. Those circumstances include the fact that this Court cannot, before the relevant dates, play its part in the resolution of the constitutional controversy presented by the proceedings. As well, it is desirable that, if the matter is to come later to this Court, the time will not have been wasted. In the circumstances it is desirable that this Court have the advantage of the decision of the Supreme Court of Queensland. After all, the legislation which is the subject of the constitutional challenge is legislation of the Parliament of Queensland. There is good reason in the circumstances why the highest court of that State, which itself holds a constitutional position envisaged by s 73, should provide its decision on the points in controversy, so long as that does not impede any ultimate consideration of the matter by this Court. Furthermore, experience over many years teaches that sometimes a hearing before a court quells the controversy. The parties, having been heard, may be satisfied that the correct decision has been reached. Alternatively, they may accept that there are only slight prospects of a different decision in this Court. They may run out of interest or money to litigate the controversy. The question may not then trouble this Court.

I make it plain that if it proves impossible for the Supreme Court of Queensland to hear and determine the proceedings in that court before, in the ordinary course, it would be possible for this Court to hear the matter in the early period of 2002, it would be appropriate (should the controversy still be alive) for the Attorney-General of Queensland to apply once again to this Court for removal or revocation of the remitter. Whether in the circumstances such an order would be available as of right or would require some exercise of discretion by this Court following the remitter is a question that can be determined should such events occur.

Orders

I therefore make the following orders:

1. On the application of the Attorney-General of Queensland, I remove the cause pending in the Supreme Court of Queensland between Local Government Association of Queensland (Incorporated) and State of Queensland, Brisbane Registry No S8801 of 2001 into this Court pursuant to section 40(1) of the Judiciary Act;

2. On the application of the Local Government Association of Queensland (Incorporated), I make the usual order for remitter of the cause to the Supreme Court of Queensland;

3. The costs of the proceedings before this Court today will be costs in the cause so remitted; and

4. I certify for the attendance of counsel in chambers.

Is there any variation of those orders that you seek, Mr Hanger?

MR HANGER: No, thank you, your Honour.

KIRBY J: Mr Solicitor?

MR KEANE: No, thank you, your Honour.

KIRBY J: Mr Solicitor for the Commonwealth?

MR BENNETT: No, your Honour.

KIRBY J: I made the order of remitter in the usual terms because the Registrar tells me that there are certain formulae that are used for sending photocopies of documents and so on. No doubt that will be a matter for discussion between the solicitors and the Registry. The Court will now adjourn.

AT 2.55 PM THE MATTER WAS ADJOURNED