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Queensland Judgments

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Authorised Reports & Unreported Judgments
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Awabdy & Anor v Electoral Commission of Queensland & Anor  
Unreported Citation: [2019] QCA 187
EDITOR'S NOTE

The respondent successfully sought a declaration from the Supreme Court to the effect that ss 290 and 291 Electoral Act 1992 (“Qld Act”) were not inconsistent with ss 314AB and 314AC Commonwealth Electoral Act 1918 (Cth) (“Cth Act”) within the meaning of s 109 Constitution. The appellant appealed the decision, contending that the provisions of the Cth Act operated to the exclusion of the provisions of the Qld Act with respect to the disclosure of gifts received by a political party registered under the Cth Act for the purposes of promotion of the party’s candidates in federal elections. Sofronoff P (with whom Fraser JA and Douglas J agreed) dismissed the appeal, finding that the Acts were concerned with the integrity of State and Federal electoral processes respectively, such that they did not regulate the same conduct and no direct or indirect inconsistency arose for the purposes of s 109 Constitution.

Sofronoff P and Fraser JA and Douglas J

13 September 2019

Background

The respondent successfully applied to the Supreme Court for a declaration to the effect that ss 290 and 291 Electoral Act 1992 (“Qld Act”) were not inconsistent with ss 314AB and 314AC Commonwealth Electoral Act 1918 (Cth) (“Cth Act”) within the meaning of s 109 Constitution. [1]. The appellant appealed the decision, arguing that the provisions of the Cth Act operated to the exclusion of the Qld Act “with respect to the disclosure of gifts received by a party registered under the Cth Act for the purposes of promotion of the party’s candidates in federal elections”. [2]–[3]. The Attorney-General of the Commonwealth intervened in the appeal in support of the appellant. [2].

Both the appellant and the Commonwealth Attorney-General initially contended that the Commonwealth had exclusive power to legislate with respect to Federal elections, and that the provisions of the Qld Act were directly or indirectly inconsistent with the provisions of the Cth Act for the purposes of s 109 Constitution. [3]–[5], [48]. However, following the decision of the High Court in Spence v Queensland [2019] HCA 15, neither party maintained that the Commonwealth had exclusive power to legislate with respect to Federal elections, and the Attorney-General withdrew his submission that any indirect inconsistency arose. [47]–[48].

Whether the provisions of the Qld Act were inconsistent with the Cth Act

The President highlighted that questions of direct and indirect inconsistency for the purposes of s 109 Constitution require a proper understanding of the policy and purpose of the statute, and a precise identification of the laws to be compared. [10]–[11]. To that end, his Honour considered that the whole of Part 11 of the Qld Act and Part XX of the Cth Act were relevant to the question of any inconsistency between ss 290 and 291 Qld Act and ss 314AB and 314AC Cth Act. [11]–[13], [24].

Upon review of the history and context of Part XX Cth Act and of the Act more broadly, Sofronoff P concluded that the evident purpose of the Part was to prevent or reduce the potential for political corruption of the Commonwealth Parliament by reducing the possibility of secret donations or deals. [14]–[23]. In that respect, his Honour found that while the Cth Act was concerned with protection of the Federal electoral process, it had nothing to say about State elections or electoral processes. [24]–[31]. Insofar as the Cth Act captured payments made to a Queensland State branch of a political party registered with the Commonwealth Electoral Commission, that occurred because the payments might bear upon the integrity of a Commonwealth election and not out of any concern for Queensland’s electoral integrity. [32].

The President considered that his analysis of the Cth Act applied mutatis mutandis to the Qld Act, in that the Qld Act was exclusively concerned with the integrity of the Queensland Parliament and State electoral processes. [33]–[36]. His Honour emphasised that compliance with either of the Acts did not necessitate disobedience with the other, and although inconsistency could still exist in those circumstances, the Cth Act could not be construed as evincing an intention to cover its subject matter to the exclusion of any other law. [37]–[40]. As such, the President concluded that the Cth Act and the Qld Act did not regulate the same conduct, and that there was no direct or indirect inconsistency between the Acts. [41], [49].

Orders

In the result, Sofronoff P (Fraser JA and Douglas J agreeing) dismissed the appeal and ordered that the appellant and the Commonwealth Attorney-General pay the respondents’ costs. [51]–[53].

B McNamara