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Queensland Judgments

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Electoral Commission of Queensland v Awabdy  
Unreported Citation: [2018] QSC 33
EDITOR'S NOTE

The question raised in this case was whether the Electoral Act 1992 was inconsistent with the Commonwealth Electoral Act 1918 (Cth) because it required a State registered political party to give a return to a State agency including particulars of any gifts exceeding $1000 while under the Commonwealth Act a federal registered political party was only required to give a return to a Commonwealth agency if the gift exceeded $13,500. Jackson J found that the Acts had “different but overlapping subject matters” but that “nothing in that subject matter or the operation of the laws support[ed] a negative implication in the operation of [the Commonwealth law], to exclude a State law requiring disclosure of gifts made for the Commonwealth electoral purpose”. Accordingly, there was no inconsistency.
Jackson J
1 March 2018
The dispute which arose in this matter concerned whether the Electoral Act 1992, which requires the agent of a State registered political party to give a return to a State agency including particulars of gifts from any person or organisation that exceed $1,000, was inconsistent with the Commonwealth Electoral Act 1918 (Cth), which requires the agent of a Federal registered political party under that Act to give a return to a Commonwealth agency including particulars of sums received that exceed $13,500. [1].
The respondent was the agent of the Liberal National Party of Queensland. [2]. Pursuant to the Electoral Act 1992, the respondent was required to furnish a State return. [2]. The respondent was also required, pursuant to the Commonwealth Electoral Act 1918 (Cth), to provide a Federal return on the basis that the Liberal National Party of Queensland is a State branch of a registered political party under that Act. [2].
The applicant sought a negative declaration that there was no inconsistency under s 109 of the Constitution. [23]. In contrast, the respondent submitted that insofar as the provisions of the State Act required an agent of a State branch of a Federal registered political party to include the State required particulars of a gift not in excess of $13,500 in a State return, the State Act was inconsistent with the provisions of the Commonwealth Act, “if the gift was made for the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by the political party” (the “Commonwealth electoral purpose”). [25].
Jackson J made two preliminary points. First, the suggested inconsistency was confined to a sub-set of the class of gifts, namely, those made for the Commonwealth electoral purpose. [26]. Secondly, a critical step in the respondent’s submission was that the State Act “would impose an obligation plainly greater than that for which the Commonwealth Act [had] provided”. [29].
His Honour outlined the relevant principles to be applied, including the taxonomy developed by the High Court in relation to direct inconsistency and indirect inconsistency. [33]. The respondent here had alleged that to allow the State law to operate would defeat the purpose of the Commonwealth law. [36]. Jackson J noted, however, that direct inconsistency has usually been understood as focusing on whether a law would impair, alter, or detract from the operation of the Commonwealth law. [36].
Jackson J said the submissions of the respondent sought to characterise the operation of the provisions of the Commonwealth Act as though they granted an immunity to an agent of a State branch of a Federal registered political party. [45].
His Honour explained that the State Act and the Commonwealth Act had “different but overlapping subject matters”. [83]. However, in his Honour’s view, “nothing in that subject matter or the operation of the laws support[ed] a negative implication in the operation of [the Commonwealth law], to exclude a State law requiring disclosure of gifts made for the Commonwealth electoral purpose”. [84]. Once this point was established, Jackson J explained that the respondent’s argument for inconsistency became more clearly untenable. [84].
In the result, his Honour did not consider that there any inconsistency and made a declaration accordingly.
J English