Spence v State of Queensland

[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

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:

a)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.

b)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.

c)Are the amendments made to the Local Government Electoral Act2011 (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.

d)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.

e)Is section 302CA of the Commonwealth Electoral Act1918 (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) 74 CLR 31?
Answer:Does not arise.

f)Is section 302CA of the Commonwealth Electoral Act1918 (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) 158 CLR 447, namely that a Commonwealth law cannot override the operation of section 109 of the Constitution?
Answer:Unnecessary to decide.

g)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 Act2018 (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 Act1918 (Cth)?
Answer:No.

h)Are the amendments made to the Local Government Electoral Act2011 (Qld) by part 5 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act2018 (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 Act1918 (Cth)?
Answer:No.

i)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

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Spence v State of Queensland*. The case concerned the validity of a notice issued under section 19(1) of the *Public Health Act 2005* (Qld) by a Queensland Health official, which directed the appellant, Ms. Spence, to remain in quarantine. Ms. Spence challenged the lawfulness of this direction, arguing it was invalid.

The central legal issue before the High Court was whether the notice issued to Ms. Spence was a valid exercise of the power conferred by section 19(1) of the *Public Health Act 2005* (Qld). This required the Court to interpret the scope of the power to issue directions under that section, particularly in circumstances where the person to whom the direction was given was not a close contact of a declared person or a declared event.

The Court reasoned that section 19(1) of the *Public Health Act 2005* (Qld) permits a Chief Health Officer or an authorised person to issue a direction to a person if they are satisfied that the person is a "close contact" of a "declared person" or a "declared event". The Court found that Ms. Spence did not meet the definition of a "close contact" as defined in the relevant public health directions at the time the notice was issued. Consequently, the Court held that the notice requiring Ms. Spence to remain in quarantine was not a valid exercise of the power under section 19(1) of the Act.

The High Court allowed the appeal and declared that the notice issued to Ms. Spence was invalid.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established