Re Loubie was a 1986 Australian case involving the breach of s.117 of the constitution by the Queensland government.
Contents
Case facts
Loubie was a New South Wales resident. In Sydney he bought 5 bags of heroin weighing 138.14 grams for $25,000. He was intending to sell the drugs in Brisbane for a personal profit of around $5,000 to $7,500. After the purchase of the heroin he bought 3 plane tickets, under false names, to travel to Brisbane with two accomplices. One of which was a woman who carried the drugs. All three were apprehended by police after they left the airport. Both accomplices admitted their involvement in the intended sale of the drugs, Loubie denied involvement. However, when presented with evidence of his involvement by his accomplices he admitted involvement and offered the police officer $10,000 cash as well as the $11,000 worth of jewelry he was wearing as a bribe to avoid prosecution. Loubie stated to the officer: “Look what can I do. The drug is mine. I got five kids. Can we do something. I can get money. I ring my nephew in Sydney. He will get $10,000.00 on his house. I give it to you. Maybe I can get some of the drug back, soon as I sell it I give you the money. Please can I go. What about my 5 kids."
He was charged under the Health Act (1937) of possession of dangerous drugs, heroin, for the purpose of sale. He was also charged under section of 121 of the Criminal Code for corruptly offering a police officer a sum of money and a quantity of jewellery in order to obtain protection from prosecution.
He was denied bail under the Queensland Bail Act s. 16(3) (b) which states as he was not a resident of Queensland he needed to show cause for receiving bail. He was unable to do this so his bail was denied.
S. 16(3) (b) of the act states: it is prohibited granting bail to a person ordinarily residing outside Queensland, unless cause was shown why it should be granted.
However under the Queensland Bail Act a resident of Queensland that was charged with the same offences as Loubie would not have to show cause for bail and would therefore be far more likely to be granted it. Loubie believed this act was discriminating against him based on his state of residence, which would put the act in direct contradiction section 117 of the constitution, and so he appealed his case to the Supreme Court of Queensland to dispute the ruling on his bail.
Relevant Constitutional Right
The case called into question section 117 of the constitution, protection from discrimination on the bases of state residence. The section states: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.'
This right makes it unlawful to discriminate against other people on the basis of their state of residence. It is an express right in the constitution.
Being a NSW resident Loubie was not entitled to bail in Queensland unless he showed cause to receive bail, where a Queensland resident with the same charges would not have to show cause. This makes receiving bail for people from out of state significantly harder to obtain. He felt he was being discriminated against purely due to his state of residence.
The Supreme Court judge found that the Queensland Bail Act s. 16(3) (b) was not in accordance with section 117 of the constitution. The court stated that “by selecting residence as the criterion for applying the statutory disadvantage, the legislation chooses the exact standard prohibited by s. 117”. The Queensland Bail Act s. 16(3) (b) was thus rendered invalid. Loubie therefore did not have to show cause to receive bail in his original court case. Bail was granted to him.
This was verified by the later in the similar case of Fitzgerald, which was held before the Full Court. The case was also referenced in the Yanner case, held in the High Court.
Significance
The Loubie cases started a ripple effect with many other cases regarding bail to people from out of state. After Loubie there was the Fitzgerald case, and after that many others. In all these cases it was determined that the defendant did not have to show cause to receive bail.
On a state level The Loubie case had caused a change in Queensland legislation with the amendment of s. 16(3) (b) of the Queensland Bail Act. This meant any person being tried in Queensland that was from out of state did not need to show cause for receiving bail as they would have used to.
On a national level this case had forced all states to look at their laws regarding bail, to see if in fact they were discriminating between out of state residence. Although there was an immediate change in the Queensland Bail Act, it was later found the Victorian Bail Act (1977) had a similar section to the Queensland act which discriminated on the basis of state origin. This act was also amended
The ultimate outcome of the Loubie case was a strengthening of Australians right to not be discriminated against on the basis of state residence. By ensuring this right extends to matters involving bail between states, all Australians will now have the same terms for receiving bail in a state as a local state resident, no matter what state they are from.