O'Meara v McTackett

[2000] HCA 32

HIGH COURT OF AUSTRALIA

GUMMOW J

KENNETH IAN O'MEARA  APPLICANT

AND

STEPHEN GRAHAM McTACKETT & ORS  RESPONDENTS

O'Meara v McTackett [2000] HCA 32
31 May 2000
S212/1999

ORDER

1. Application dismissed.

1. Applicant to pay the costs of the first, second, third, fourth and eighth respondents.

1. No order as to costs in respect of the fifth, sixth and seventh respondents.

Representation:

Applicant represented himself

M J Leeming for the first, second, third and fourth respondents (instructed by Australian Government Solicitor) and for the eighth respondent (instructed by Director of Public Prosecutions)

M G Sexton QC, Solicitor-General for the State of New South Wales for the fifth, sixth and seventh respondents (instructed by Crown Solicitor for the State of New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

O’Meara v McTackett

Constitutional law (Cth) – Whether authorisation of a search warrant under s 3E of the Crimes Act 1914 (Cth) is in breach of s 71 of the Constitution – Whether s 29D of the Crimes Act 1914 (Cth) is beyond the legislative power of the Commonwealth Parliament – Whether the State laws authorising the Director of Public Prosecutions of New South Wales to issue indictments under s 10 of the Criminal Procedure Act 1986 (NSW) are inconsistent with s 7(2) of the Australia Act 1986 (NSW).

Practice and procedure – Jurisdiction invested in State Supreme Courts by the Judiciary Act 1903 (Cth) in matters involving interpretation of the Constitution – Relevance of considerations of fragmentation of criminal proceedings.

Constitution, ss 51(ii), 51(xxxix), 109.
Australia Act 1986 (Cth), ss 2, 3, 7(2).
Crimes Act 1914 (Cth), ss 3E, 29D.
Judiciary Act 1903 (Cth), ss 38, 39.
Criminal Procedure Act 1986 (NSW), s 10.
Director of Public Prosecutions Act 1986 (NSW).

1. GUMMOW J. This is an application by motion seeking an order under s 40 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") for removal into this Court of part of a cause presently pending in the Common Law Division of the Supreme Court of New South Wales, file No 12390 of 1999 ("the Supreme Court proceeding"). Removal is sought in respect of so much of that pending cause as involves what is stated as the following questions:

   1.that the authorisation of the search of the applicant's home and business premises on 23 September 1999, under the authority of a search warrant issued by a Chamber Magistrate under the provisions of the Crimes Act 1914 (Cth) ("the Crimes Act"), is invalid, in that it is in breach of s 71 of the Commonwealth of Australia Constitution Act ("the Constitution");

   2.that the Crimes Act is invalid in that it is in breach of s 51 of the Constitution; and

   3.that the attempt by the sixth respondent – the New South Wales Director of Public Prosecutions ("the Director") – to exercise the powers and functions of Her Majesty under the Director of Public Prosecutions Act 1986…