Berado v State of Queensland[2007] QSC 214

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

BRISBANE

..DATE 09/08/2007

ORDER

HER HONOUR:  The applicants in this application are electors on the electoral roll for the State of Queensland.  They apply against the second respondent, Mr Neil Laurie, the Clerk of the Parliament of Queensland, for a declaration pursuant to section 78(6) of the Constitution of Queensland 2001 that the Local Government Reform Implementation Bill 2007 has no effect as an Act if assented to in contravention of section 78 of the Constitution and an injunction pursuant to the same provision preventing the presentation for assent of the Bill in contravention of section 78 of the Constitution.

The applicant was filed by leave this evening as an urgent matter.  In view of the history that Mr Harrison related of the Bill being introduced into Parliament on Tuesday, the 7th of August and the second reading speech commencing on Tuesday, the 7th of August, the applicants were concerned that the other stages of the Parliament dealing with the Bill may be undertaken quite quickly and therefore sought an interim injunction to prevent the presentation for assent of the Bill.

Argument has been heard this evening which primarily focused on the construction of section 78 of the Constitution.

The argument for the second respondent was there was no purpose in the granting of an injunction even on an interim basis if the applicants could not show that the Bill which is the subject of the application is a Bill for an Act ending the system of local government in Queensland.  Section 78(1) specifies that section 78 applies for a Bill for an Act ending the system of local government in Queensland.

The applicants contended that the system of local government in Queensland was the system in place when the Constitution was enacted (in 2001) and referred to the Local Government Act 1993 and the detailed provisions in that Act for ascertaining or fixing local government areas.  In particular, the applicants rely on section 19, subsection (2), that specified at least three classes of a local government area being city, town and shire.

The Bill implements reforms that have been the subject of much public debate in recent days in Queensland.  I was informed that a consequence of the Bill, if enacted, would be to reduce 157 existing local government areas to 73 local government areas.  Thirty-seven existing local government areas are unaffected by the Bill.

Some indication of the general effect of the changes can be gleaned from schedule 1(a) of the Bill which sets out in part 1 new local governments that are in a new class called "region".  In part 2 there is a list of adjusted local governments which appear to be based on the class of shire and city.  Then in part 3 there are continuing local governments which are based on shire and city.

The argument for the applicants was that "region" is a distinctly different concept to what has been the existing regime of cities, towns and shires in that a region is not local in the sense of being centred on a locality.

The submissions for the respondent focus on part 7 of the Constitution and commence with section 70(1) which specifies that there must be a system of local government in Queensland.  Subsection (2) of section 70 states that the system consists of a number of local governments.  In section 71(1) the requirements for a local government are specified:  "A local government is an elected body that is charged with the good rule and local government of a part of Queensland allocated to the body."

Subsection (2) of section 71 recognises that other legislation may provide for the way in which a local government is constituted and the nature and extent of its functions and powers.  The Local Government Act 1993 is such legislation.

Part 3 of Chapter 7 of the Constitution sets out special procedures for particular local government Bills.  Although some reference was made in passing to section 77 of The Constitution, that was not the basis on which the interim injunction was sought.

Section 78, which is found in Part 3, was the provision relied on by the applicants.

The issue that was argued is a construction issue.  Although there were reasons that the applicants put forward for having a trial of the matter there is little point in allowing the matter to go forward, if there are little or no prospects of success.

Although it is unusual on an interim injunction application to decide the matter on the basis of a final view of the relevant legislative provision, I consider that I am able to do that in this case because it is a relatively straightforward construction of section 78 of the Constitution that has to be considered.

The competing constructions have been put before me.  The construction contended for by the applicants is very narrow.  It in effect does not give weight to the powers of the Parliament.  The Bill amends the Local Government Act 1993.  It leaves the fundamental system of local government in place.  It changes the detail of that system in the sense of enlarging a number of local government areas but the system of having a number of local governments in Queensland remains intact.

I do not accept the argument of the applicants that changing the detail of the current system amounts to ending the system of local government in Queensland.  That is why I would refuse the application for the interim injunction.

...

HER HONOUR:  As I indicated in the reasons that I have just given, I formed a concluded view on the construction.  I do not think that there are any real prospects of success for the applicants in this matter.

The interim injunction application is very much the substance of the relief that is sought in the originating application.  In those circumstances I am prepared to order costs in favour of the second respondent.

I therefore order that the applicants pay the second respondent's costs of the application for the interim injunction, to be assessed.