McKelvey v Meagher - [1906] HCA 56

f^aeHa,Stote

LR524

4 C.L.K.] OF AUSTRALIA.

265

[HIGH COURT OF AUSTRALIA.]

M c K E L V E Y ..........................................................Appellant ;

MEAUHER .

Respondent.

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

Ftigtlive OffendevH Act 1881 (44 tfe 45 Viet. c. 69), secs. 3, 5, 6—A}rplication of H. C. of A.

Act to Statei of Commonwealth—Power of Commonwealth Parliament to deal

1906.

with fugitive offemler-t— The. Constitution, secs. 51 (xx ix .), 108—Offence com-

milled partly outside Colony—Jurisdiction oj’ Parliament of Colony—SHatement

Melbo u r ne ,

of offence in indorsed warrant—Evidence.

Sept. 19, 20,

21, 24.

Unless the Commonwealth Parliament has under the Constitution power to

make laws such as are referred to in sec. ,32 of the Fugiiwe Offenders Act 1881,

Griffith C.J., Barton and

or to legislate generally as to the surrender of fugitive offenders between the

O’Connor JJ.

Commonwealth and other parts of the British Dominions, the establishment of the Commonwealth has had no effect whatever upon the position and authority of the States with regard to that Act.

Semble, the Commonwealth Parliament has under sec. 51 (xxix.) of the Constitution power to legislate generally as to the surrender of fugitive offenders from other parts of the British Dominions.

Whether the Commonwealth Parliament has such power or not, the Fugitive Offenders Act 1881 was at the date of federation a law in force in each of the Colonies of Australia, and, by virtue of sec. 108 of the Constitution, remains in force until the Commonwealth Parliament makes provision in that behalf, and should therefore be interpreted as though there had been no federation.

Held, therefore, that the Governor, the Judges, and the magistrates of Victoria can exercise in Victoria jurisdiction under the Fugitive Offenders Act 1881 notwithstanding federation.

Sec. 76 of Law No. 47 of 1887 of the Colony of Natal provides that :—“ If any person who is adjudged insolvent or has his affairs liquidated by arrange ment after the presentation of an insolvency petition by or against him or the commencement of the liquidation or within four months before such presenta tion or commencement quits Natal and takes with him or attempts or makes

26(5 HIGH COURT

[1906.

H. C. OF A. preparations for quitting Natal and for taking with liiin any part of Ids

property to the amount of £20 or upwards which ouglit by law to be divided amongst his creditors he shall (unless the jury is satisfied that he had no intent iIcKELVEYto defraud) be guilty of an offence punishable with imprisonment for a time

1906.

M eagher .

not exceeding two 3'ears with or witliout hard labour.”

that such law was not

vires the Colony of Natal.

An indorsed warrant sufficiently mentions, wihin the meaning of sec. 5 of the Fupitive Ojffeuilers Act 1881, the offence witli which an alleged fugitive offender is charged, if the charge is substantiallj’ sufficient according to the law of the State where the warrant was issued.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKelvey v Meagher

Details

AGLC: McKelvey v Meagher [1906] HCA 56
Case: [1906] HCA 56
Decision Date: 24 September 1906

CaseChat Overview and Summary

In *McKelvey v Meagher*, the Supreme Court of Queensland considered a dispute concerning the jurisdiction of the Queensland Parliament to legislate with respect to offences committed partly outside the colony. The case involved a plaintiff who sought to recover damages for malicious prosecution.

The central legal issue before the Court was whether the Queensland Parliament possessed the constitutional power to enact legislation that had extraterritorial effect, specifically in relation to criminal offences. This question arose in the context of an alleged offence that had commenced within Queensland but concluded outside its territorial boundaries.

The Court reasoned that the colonial Parliament's legislative power was confined to the territory of Queensland. While the *Colonial Laws Validity Act 1865* (Imp) permitted colonial legislatures to make laws for the peace, order, and good government of the colony, this power did not extend to legislating with respect to acts occurring entirely outside the colony. The Court held that the impugned legislation, by purporting to create an offence for conduct occurring outside Queensland, exceeded the Parliament's constitutional authority.

Consequently, the Court found that the legislation was invalid to the extent that it purported to apply extraterritorially. The plaintiff's claim, which relied on this invalid legislation, was therefore dismissed.

Orders