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[1992] FCA 602
Federal Court of Australia
1992-12-04
French J
Original judgment source is linked above.
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."
31. If it be accepted that a Commonwealth law of general application could not constitutionally authorise executive action which unduly interferes with the governmental function of the State it does not follow that the episodic exercise of the power to issue a search warrant for the purpose of temporary seizure of certain Departmental records would amount to such interference. In the present case it is not suggested that the seizure of the records themselves would constitute any direct interference with departmental functioning. What is feared is a reaction by elements of the fishing industry who have an interest, for good reasons or bad, in maintaining the confidentiality of their returns. That confidentiality however is not compromised in relation to their commercial competitors by the execution of the warrant. That is not to say that a warrant issued for the seizure of State papers may not constitute in certain circumstances such a direct interference with the operations of a State Government that it would exceed the power conferred by s.10 on constitutional grounds. A question might arise, for example, if a warrant were to issue for the seizure of current cabinet records of a State Government. However that is not a question which it is necessary to address for present purposes.
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.
Re Peter Rogers
Kenneth Moore, Johannes Jacobsen and Terence Lester Dibb [1992] FCA 602;
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
George v. Rockett [1990] HCA 26; (1990) 64 ALJR 384
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.
(1992) 112 ALR 265
(1992) 39 FCR 201
(1986) 162 CLR 24
(1990) 26 FCR 473
(1990) 64 ALJR 384
(1991) 30 FCR 1
(1983) 153 CLR 52
(1947) 74 CLR 31
(1948) 76 CLR 1
(1971) 122 CLR 353
(1985) 159 CLR 192
(1983) 2 VR 133