Herscu v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Herscu, sought leave to appeal against a decision of the Queensland Court of Appeal. The respondent was the Crown. The dispute concerned the interpretation of a section of legislation under which the applicant was charged with giving a benefit to a Minister on account of the Minister doing something in the discharge of the duties of his office.

The central legal issue before the High Court was whether the legislation conferred a general duty of supervision upon the Minister in relation to local government, specifically the Brisbane City Council. The applicant argued that the Minister's powers were specific and circumscribed, and that the legislation did not impose a general duty of supervision as postulated by the lower courts. This distinction was crucial to the applicant's defence, as it related to the interpretation of the elements of the offence charged.

The applicant's submission was that there is a conceptual difference between a minister using their official position to persuade a local government authority to act, and a minister performing an act that they are legally required to do or omit. The applicant contended that the relevant section of the legislation, which created the offence of giving a benefit to a person on account of that person doing something in the discharge of the duties of their office, required that the act done or omitted to be done by the public officer be in discharge of a *legal* duty cast upon them by virtue of their office. The applicant argued that the Local Government Act of Queensland and the City of Brisbane Town Planning Act did not confer such a general duty of supervision on the Minister.