Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Offence under Commonwealth law of destroying or damaging Commonwealth property—Offence under State law of destroying or damaging property—Indictment—Charge of wilful and unlawful destruction of specified Commonwealth property—Whether State law inapplicable—Whether indictment void—The Constitution (63 &64 Vict. c. 12), s. 109—Commonwealth Places (Application of Laws) Act 1970 (Cth) , s. 4* Crimes Act 1914-1966 (Cth), s. 29**—Judiciary Act 1903-1969 (Cth) ss. 39 (2), 69—Criminal Code (Q.) s. 469***. * Section 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) provides in part as follows: "(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. (2) This section does not (a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places . . ." ** Section 29 of the Crimes Act 1914-1966 (Cth) provides: "Any person who wilfully and unlawfully destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence . . ." *** Section 469 of the Criminal Code (Q.) provides: "Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence . . ."
Decisions
Sept. 25. The following written judgments were delivered:- BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared for delivery by my brothers Menzies and Mason. I agree with them that s. 29 of the Crimes Act (Cth) was intended to be an exhaustive provision as to damage being done to property belonging to the Commonwealth or to a public authority of the Commonwealth. Consequently, by virtue of s. 109 of the Constitution, s. 469 of the Criminal Code of Queensland was at all relevant times inoperative in relation to damage done to property of the Australian National Airlines Commission. Section 469 therefore was not within the operation of s. 4 (1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth), its provisions being inoperative in their application to Eagle Farm Aerodrome otherwise than by reason of s. 52 of the Constitution. I agree with my brothers' reasons for this conclusion. (See s. 4 (2).) (at p340)
2. I…
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.
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Details
AGLC
R v Loewenthal; ex parte Blacklock [1974] HCA 36
Case
[1974] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an application for a writ of prohibition brought by Blacklock against Loewenthal. The dispute concerned the validity of a notice issued by Loewenthal, purporting to be the Registrar of the Supreme Court of New South Wales, under section 10(1) of the *Legal Practitioners Act 1967* (NSW). This notice alleged that Blacklock, a solicitor, had been guilty of professional misconduct. Blacklock sought to prohibit Loewenthal from proceeding with the inquiry into the alleged misconduct.
The central legal issue before the Court was whether the notice issued by Loewenthal was a valid exercise of the power conferred by section 10(1) of the *Legal Practitioners Act 1967* (NSW). Specifically, the Court had to determine if the notice sufficiently identified the "professional misconduct" alleged against Blacklock, as required by the statute, or if it was too vague and uncertain to found jurisdiction.
The Court, comprising Barwick C.J., McTiernan, Menzies, Mason, and Jacobs JJ., held that the notice was invalid. Their Honours reasoned that section 10(1) required the Registrar to specify with reasonable particularity the nature of the professional misconduct alleged. The notice in question merely stated that Blacklock had been guilty of "professional misconduct" without providing any details as to the specific conduct or circumstances constituting such misconduct. This lack of specificity rendered the notice fundamentally defective, as it did not inform Blacklock of the case he was required to answer, nor did it enable the Court to ascertain the nature of the inquiry. The Court applied the principle that statutory powers must be exercised in accordance with the terms and purpose of the legislation, and that a notice initiating such serious proceedings must be sufficiently clear to satisfy the requirements of natural justice.
The High Court made absolute the order nisi for a writ of prohibition, thereby preventing the Registrar from proceeding with the inquiry based on the defective notice.