Federal Court of Australia|1992-12-04|Before: French J

The application of the propounded limitation on general laws affecting the State is not clear. A pragmatic approach is suggested by the judgment of Starke J. in the Melbourne Corporation case at 75:

"It is a practical question, whether legislation or

executive action thereunder on the part of a

Commonwealth or of a State destroys, curtails or

interferes with the operations of the other, depending

upon the character and operation of the legislation

and executive action thereunder. No doubt the nature

and extent of the activity affected must be considered

and also whether the interference is or is not

discriminatory but in the end the question must be

whether the legislation or the executive action

curtails or interferes in a substantial manner with

the exercise of constitutional power by the other."

32. For the preceding reasons, in my opinion, none of the grounds of challenge to the learned magistrate's decision to issue the search warrants is made out and the application will be dismissed.

Fisheries Act 1905(WA)

Decisions (Judicial Review) Act 1977

Administration Act 1953

Tax Assessment Act 1936

(Interception) Act 1979

Conciliation and Arbitration Act 1904

Re Peter Rogers v Kenneth Moore, Johannes Jacobsen and Terence Lester Dibb [1992] FCA 602; (1992) 112 ALR 265 (1992) 39 FCR 201 (1992) 28 ALD 35 (4 December 1992)

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Karina Fisheries Pty Ltd v. Mitson [1990] FCA 154; (1990) 26 FCR 473

Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52

Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31

Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1

Victoria v. The Commonwealth [1971] HCA 16; (1971) 122 CLR 353

1. The prohibition against discrimination which involves the

placing on the States of special burdens or disabilities.

2. The prohibition against laws of general application which

operate to destroy or curtail the continued existence of

the State or their capacity to function as governments:

Victoria v. Australian Building Construction Employees

and Builders Labourers Federation ((1982) [1982] HCA 31; 152 CLR 25 at

p 93). The second element of the prohibition is

necessarily less precise than the first; it protects the

States against laws which, complying with the first

element because they have a general application, may

nevertheless product the effect which it is the object of

the principle to prevent.

Re Peter Rogers v Kenneth Moore, Johannes Jacobsen and Terence Lester Dibb [1992] FCA 602;

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Re Peter Rogers v Kenneth Moore, Johannes Jacobsen and Terence Lester Dibb [1992] FCA 602; (1992) 112 ALR 265 (1992) 39 FCR 201 (1992) 28 ALD 35 (4 December 1992)