QLD State and Commonwealth Electoral Disclosure Laws Found Not To Be Inconsistent Under Section 109

Friday 2 March 2018 @ 3.15 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

Justice Jackson of the Queensland Supreme Court has found that Queensland electoral laws requiring the reporting of donations larger than $1000 are not inconsistent with Commonwealth laws requiring the reporting of donations larger than $13,500.  The decision in Electoral Commission of Queensland v Awabdy [2018] QSC 33 means that the Queensland Liberal National Party will now have to provide returns for donations made for the party’s federal candidates that are over the $1000 threshold. 

The applicant in the case, the Electoral Commission of Queensland, sought a declaration that there was no inconsistency. The respondent, Ryta Awabdy, is the agent obliged to give a State return under the Electoral Act 1992 (Qld) (“the State Act”) and the agent obliged to give a Federal return under the Commonwealth Electoral Act 1918 (Cth) (“the Commonwealth Act”).

Differences Between the Laws

The case revolved around whether s 109 of the Constitution applied to the differences between the Commonwealth Act and State Act.

Section 109 of the Constitution says that:

“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

In his judgment, Justice Jackson highlighted three differences between the applicable Acts.

Firstly, differences in how the Acts defined who must report.  His Honour noted:

“because the LNPQ is a State branch of a Federal registered political party, that the operation of s 314AB of the Commonwealth Act obliges the respondent to furnish a Federal return.  And it is because the LNPQ is a State registered political party, that the operation of s 290 of the State Act obliges the respondent to give a State return.”

Secondly, His Honour highlighted differences in which body the donation report must be provided to.  Under the State Act, disclosures must be made to the Electoral Commission of Queensland.  Under the Commonwealth Act, the disclosures must be made to the Australian Electoral Commission.

Thirdly, Justice Jackson pointed out differences in requirements for the treatment of “gifts” under the legislation.  Under the Commonwealth Act, disclosures must occur for all amounts received in excess of the threshold amount, whether by gift or otherwise.  Under the State legislation, there are specific particulars that must be disclosed for a “gift”.

His Honour summarised the argument at para [29] as:

“At base, the respondent submits that when s 290 obliges 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 it is inconsistent with ss 314AB and 314AC 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.”

Decision

The respondent argued that there was direct inconsistency between the two laws, specifically arguing that “to allow the State law to operate would defeat the purpose of the Commonwealth law.” [at 35].

However, his Honour rejected that argument.  Since there was no clear statement that the Commonwealth law intended to apply exclusively, he considered whether there was a negative implication as to exclusive operation:

“However, in my view, nothing in that subject matter or the operation of the laws supports a negative implication in the operation of ss 314AB and 314AC [of the Commonwealth Act], to exclude a State law requiring disclosure of gifts made for the Commonwealth electoral purpose.  When ss 314AB and 314AC operate, they do not do so by reference to disclosure of gifts made for that purpose.  No explanation was given by the respondent as to why there is a negative implication that excludes a State law directed to gifts for the Commonwealth electoral purpose.

Once that point is established, in my view, the respondent’s argument for inconsistency becomes more clearly untenable, in the absence of express provision to support it.  Shorn of the limit that it is confined to gifts for a Commonwealth electoral purpose, the suggested negative implication would make a State registered political party that is also a State branch of a Federal registered political party immune from any obligation to include the State required particulars in a State return for gifts made only for a State electoral purpose, gifts made for a combined Commonwealth electoral purpose and State electoral purpose and gifts made for no particular purpose, if the relevant gifts are at or below the threshold amount of $13,500. 

In my view, properly construed, ss 314AB and 314AC do not operate in that way.” [at 84 – 86]

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