Spence v State of Queensland [2019] HCATrans 80 (17 April 2019)

Last Updated: 17 April 2019

[2019] HCATrans 080

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

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 APRIL 2019, AT 9.45 AM

Copyright in the High Court of Australia
KIEFEL CJ: This special case was heard in Canberra on 12, 13, 14 and 15 March 2019 by a Court constituted by Justices Bell, Gageler, Keane, Nettle, Gordon, Edelman and me. By majority, the Court orders that the questions raised by the special case be answered as follows:

1. 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.

2. 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.

100. 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.

4. 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.

5. 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] HCA 26; (1947) 74 CLR 31?

Answer: Does not arise.

6. 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] HCA 74; (1984) 158 CLR 447, namely that a Commonwealth law cannot override the operation of section 109 of the Constitution?

Answer: Unnecessary to decide.

7. 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.

8. 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.

1. Who should pay the costs of the special case?

Answer: The plaintiff.

I publish that order. The Court will publish its reasons at a later date.

AT 9.50 AM THE MATTER WAS CONCLUDED