PETER ROGERS v. KENNETH MOORE; JOHANNES JACOBSEN and TERENCE LESTER DIBB
No. WAG203 of 1992
FED No. 475
Number of pages - 36
Jurisdiction - Practice and Procedure
(1993) 115 ALR 347
(1993) 41 FCR 301
(1993) 31 ALD 289 (extract), (1993) 67 A Crim R 119
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Black CJ(1), Sheppard(2) and Lee(3) JJ
CATCHWORDS
Jurisdiction, Practice and Procedure - warrants - search warrant issued pursuant to s. 10 Crimes Act 1914 (Cth) - whether Crown in right of a State is bound - whether common law presumption that statutes do not bind the Crown applies
The Constitution s. 109
Crimes Act 1914 (Cth) Parts IA, IC, VII (ss 77-85D), VIIC; ss 10, 10A, 10B, 10C, 10D, 10E, 23A, 85ZQ
Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth)
Crimes Legislation Amendment Act 1992 (Cth)
Income Tax Assessment Act 1936 (Cth) s. 16
Judiciary Act 1903 (Cth) ss 39B, 78B
Taxation Administration Act 1953 (Cth)
Trade Practices Act 1974 (Cth) s. 2A
Aboriginal Heritage Act 1972 (WA) s. 17
Fisheries Act 1905 (WA) Parts IIA, III; ss 18, 19
Fisheries Amendment Regulations (No 8) 1991 (WA)
Criminal Code (Qld) s. 679
A v Hayden (1984) 156 CLR 532
Bradken Consolidated Limited v The Broken Hill Proprietary Company Limited (1979) 145 CLR 107
Brisbane City Council v Group Projects Pty Limited (1979) 145 CLR 143
Commonwealth of Australia v Northern Land Council (1993) 112 ALR 409
Commonwealth v Rhind (1966) 199 CLR 584
Melbourne Corporation v Commonwealth of Australia (1947) 74 CLR 31
Moore v Smith (1859) 5 Jur N S 892
Province of Bombay v Municipal Corporation of Bombay (1947) AC 58
Bennion, Statutory Interpretation, 2nd edition, 1992
Carter, The Law Relating to Search Warrants
McNicol, Law of Privilege, 1992
Polyviou, Search and Seizure
Stone, Entry, Search and Seizure, 2nd edition
Review of Commonwealth Criminal Law, 4th Interim Report
HEARING
PERTH, 18 and 19 February 1993
#DATE 16:7:1993
Counsel for the Appellant: K.H. Parker, QC,
M.A. Yeats
Solicitors for the Appellant: Western Australian State
Crown Solicitor
No appearance for the First Respondent.
Counsel for the Second Respondent: E.M. Heenan, QC,
M.D. Seymour
Solicitors for the Commonwealth Department
Second Respondent: of Public Prosecution
Attorney-General for Commonwealth
Intervening: G. Griffith QC, C.R. Staker
Solicitors for Commonwealth
Intervening: Australian Government Solicitor
Attorney-General for Western Australia
Intervening: K.H. Parker QC, R.E. Cock
Solicitors for Western Australia
Intervening: Western Australian State
Crown Solicitor
ORDER
The Court orders and declares that:
1. The appeal be allowed and the order dismissing the application be set aside.
2. The decision of the first respondent under s. 10 of the Crimes Act 1914 (Cth) to issue the warrants dated 12 February 1992 be set aside.
3. The warrants dated 12 February 1992 issued by the first…
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- AGLC
- Rogers, P. v Moore, K. & Ors [1993] FCA 475 ((1993) 115 ALR 347; (1993) 41 FCR 301; (1993) 31 ALD 289; (1993) 67 A Crim R 119)
- Case
- [1993] FCA 475
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were pivotal, centering on the applicability of the common law presumption that statutes do not bind the Crown to the issuance of search warrants under federal legislation. The appellant argued that the Crown in right of a State was not bound by the statutory provisions, thereby rendering the warrants issued on 12 February 1992 invalid. The court was required to determine the extent to which federal statutes could bind the Crown in right of a State, particularly in the context of the Crimes Act 1914 (Cth). This involved interpreting the statutory language and understanding the interaction between federal and state jurisdictions.
In delivering the judgment, the court considered the statutory language and the legal principles governing the Crown's immunity from statutory provisions. The court held that the common law presumption that statutes do not bind the Crown applied to the issuance of search warrants under federal legislation. Consequently, the Crown in right of a State was not bound by the statutory provisions, and the warrants issued on 12 February 1992 were deemed invalid. The court found that the first respondent's decision to issue the warrants was erroneous, and the appeal was allowed. The decision set aside the order dismissing the application and declared the warrants invalid, with the second respondents ordered to pay the appellant's costs of the appeal limited to the first day of hearing.
Orders
Orders of the court
The Court orders and declares that:
1. The appeal be allowed and the order dismissing the application be set aside.
2. The decision of the first respondent under s. 10 of the Crimes Act 1914 (Cth) to issue the warrants dated 12 February 1992 be set aside.
3. The warrants dated 12 February 1992 issued by the first respondent are invalid.
4. The second respondents pay the appellant's costs of the appeal limited to the first day of hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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