Love v Attorney-General (NSW)

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Dawson, Toohey and Gaudron JJ.

LOVE v. ATTORNEY-GENERAL N.S.W.

(1990) 169 CLR 307

13 February 1990

Constitutional Law

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth law prohibiting use of listening device for purpose of narcotics inquiries unless authorized by warrant issued by judge—State law prohibiting use of listening device—Prohibition not to apply where use authorized by warrant granted by Supreme Court—Whether inconsistent—Issue of warrant under State Act—Judicial or administrative act—Validity of warrant—The Constitution (63 and 64 Vict. c. 12), s. 109—Customs Act 1901 (Cth), s. 219B—Listening Devices Act 1984 (N.S.W.), ss. 5, 16.

Decision

MASON C.J., BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ. These appeals concern the issuing of warrants under State legislation purporting to authorize Australian Federal Police officers to install and use listening devices in the course of investigating alleged narcotics offences, in circumstances where such use by a member of the Australian Federal Police would be prohibited by federal legislation. The central question raised is whether and to what extent the warrants so issued are invalid as a result of that prohibition.

2. Nine warrants were issued between 20 March 1987 and 18 August 1987 by judges of the Supreme Court of New South Wales under Pt 4 of the Listening Devices Act 1984 (N.S.W.) ("the State Act") upon application of the New South Wales Commissioner of Police. The applications arose from investigations being conducted by State and federal police officers into alleged narcotics offences. The warrants recited in each case that the Court was satisfied that there were reasonable grounds for the belief of the Commissioner that four federal offences and two State offences "have been and are likely to be committed". The warrants authorized the use of listening devices by a named State police officer and "on his behalf" named State and federal police officers "to record or listen to the private conversations" of certain persons, including the appellants, and authorized the installation of devices on and their retrieval from specified premises and entry onto those premises for those purposes. Each warrant fixed a period during which it was to remain in force.

3. On 25 August 1987 the appellants were arrested and charged with offences under New South Wales law relating to the supply of a prohibited drug, namely heroin. In the course of the ensuing committal proceedings, the Crown indicated that it would seek to use in evidence certain tape recordings made with the use of listening devices purportedly authorized by the warrants. The appellants objected to the placing of the tapes into evidence and contended that the warrants were invalid. The magistrate ruled on 13 January 1988 that the warrants were valid and that the tapes were admissible. The appellants then sought declarations in the Supreme Court of New South Wales that the warrants were invalid and of no legal effect and orders setting them aside. The claim was referred by Lee J. to the Court of Appeal. Notwithstanding that committal proceedings in…