Love v Attorney-General (NSW)

The High Court of Australia considered the question of inconsistency between Commonwealth and State laws in *Love v Attorney-General (NSW)*. The dispute arose from the use of a listening device in narcotics inquiries, where the Commonwealth *Customs Act 1901* permitted such use under a judicial warrant, while the New South Wales *Listening Devices Act 1984* prohibited it unless authorized by a warrant granted by the Supreme Court of New South Wales.

The central legal issues before the Court were whether the State law was inconsistent with the Commonwealth law under section 109 of the Constitution, and if so, whether a warrant issued under the State Act was valid. This involved determining whether the grant of a warrant under the *Listening Devices Act 1984* was a judicial or an administrative act.

The Court reasoned that the *Listening Devices Act 1984* did not create a situation of inconsistency with the *Customs Act 1901*. It held that the power to grant a warrant under the State Act was a judicial function, not an administrative one. Consequently, the State law did not impose a prohibition that conflicted with the permission granted by the Commonwealth law, as the State law's prohibition was subject to a condition (a judicial warrant) that could be met without frustrating the purpose of the Commonwealth legislation.

The appeals were dismissed with costs, and applications for special leave to cross-appeal were also refused with costs.