Yesterday the High Court quashed convictions on Victorian conspiracy charges, finding they were directly inconsistent with Commonwealth conspiracy laws.
Dickson v The Queen is sure to have some prosecutors scanning charge sheets for offences that ought to have been laid under Commonwealth law. But like all High Court decisions, the impact of Dickson will only become clear in time.
The facts
The appellant was a former federal employee who allegedly conspired to steal a consignment of cigarettes in the possession of Customs. Edit: According to the transcript of argument, it was a live issue on the appeal whether the property actually was in the possession of the Commonwealth at the relevant time. The Court didn’t spend much time on this point in their decision. A relevant head of Commonwealth power was found to have existed.
He wasn’t charged under Commonwealth law. He was charged under Victorian law with conspiracy under s 321 of the Crimes Act 1958 to commit theft under s 72. The question for the Court was: could the State charge of conspiracy succeed despite the availability of applicable Commonwealth law? The High Court found that the State law was directly inconsistent with the Commonwealth provisions because it altered, impaired or detracted from the operation of a Commonwealth law: Victoria v The Commonwealth (1937) 58 CLR 618, Dixon J at 630.
The law
Questions of Commonwealth/State inconsistency are frequently resolved by consideration of whether the Commonwealth law was intended to cover the field. (Because of the priority given to Commonwealth law under 109 of the Constitution, where the Commonwealth Parliament are found to have intended to make exhaustive or exclusive laws on the subject the conflicting State law on the subject is inoperable).
In Dickson, the High Court instead applied the direct inconsistency test. Under 80 of the Constitution, Commonwealth law doesn’t permit majority verdicts in jury trials, where Victorian legislation does. The High Court relied upon this discrepancy and the absence of certain statutory defences in the State law in finding that the Victorian law did alter, impair or detract from the operation of the Commonwealth law.
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ [at 22]:
The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.
Comment
The overlapping nature of State and Commonwealth laws has been a sleeping giant for a while now. Under the Crimes Act 1914 (Cth) all State and Territory police officers (as well as Federal police) are entrusted with the powers of arrest, search, seizure, custody and charge under that Act. It hasn’t been made clear whether these powers are merely available, or whether they are required to be used, when dealing with a State offence with a federal aspect. (The inclusive definition at s 3AA(3) of the Crimes Act 1914 (Cth) is wide.)
(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
Don Mathias has described this decision as ‘one judgment, tightly reasoned, narrowly focussed’. He makes the point that recent High Court judgments decide the case before them but leave many unanswered questions. For some readers of High Court judgments it probably comes as a relief not to have to wade through pages of individual judgments searching for elusive ratio.
But added to the list of questions that the High Court has not addressed here, it’s now unclear whether State charges are invalid simply because charges could have been, but were not, laid under equivalent Commonwealth law. (Harley Schumann also poses this question over at the Lamp Post.)
Whether this decision has an impact on the same scale as Re Wakim, only time will tell.
If the HCA sticks to its guns, then surely there'll be problems for all state laws that overlap with federal ones.For instance, most of Part 5 of the DPSCA has, since 2005, overlapped with most of Part 9.1 of the Cth CC. Surely, Dickson AT LEAST means that (a) Vic's conspiracy provisions have been inoperative in their application to state trafficking and possession charges since 2005; (b) Vic's trafficking and possession charges have been inoperative in all jury trials (where majority verdicts are available) since 2005.And, given that the Cth provisions lack Vic's nasty deemed possession provision, arguably all of Vic's trafficking and possession offences have been inoperative since 2005. Note that, because of the HCA's Metwally decision, none of these problems can be retrospectively fixed. Even fixing them prospectively will be tricky, given the difficulty of avoiding the 'covers the field' jurisprudence.'Tightly reasoned'? More like 'lightly reasoned'! How exactly does an overlap between state and federal criminal law detract from either? And why do a few token differences between the applicable definitions and procedures – none of which were in play in this case – matter at all? And all that twaddle about s109 providing certainty? How is the need to obey two different laws – federal, state, whatever – uncertain? Overlapping offences, and different procedural rights depending on prosecution choices, are simply the norm in all criminal justice systems, especially Australia's! Sure the federal system has its own special protections, but so does Victoria's (e.g. the Charter?) I was hoping that Bell J's arrival on the court would add some understanding of criminal law to the HCA, but it seems that she is just as liable to be swamped by the Gummow/Heydon juggernaut as everyone else.Tellingly, Dickson's counsel never wanted to raise this point until the HCA bullied him into it. (Sure, Dickson has had his conviction annulled, but he has lost the ability to rely on the acquittals of his co-conspirators, which also seem to have been annulled. Even if he does object in his federal prosecution, he won't be able to raise the Charter's presumption of innocence.) Also, tellingly, only two A-Gs (the Cth and SA, and NOT Vic) intervened in this case. Obviously, no-one imagined the HCA would do anything this stupid. The entire argument (involving four parties) took just 80 minutes!!!Most likely, the HCA will back down on the implications of its judgment. But what happens in the meantime? Why shouldn't s109 applications be made in huge numbers in every drug trial across Australia? And what about the many proceedings where there is a possible federal element, but the truth can't be established until the trial is held? (On my reading of the transcript, it isn't at all clear that the parties conceded that the cigarettes belonged to customs.)A crazy and stupid decision. The HCA does lots of those, of course. But it's rare that they are also unanimous!
Note also the implications for Vera Momcilovic's coming Charter appeal in the HCA. Surely her conviction (in 2008) by a jury (without the application of s80) and using s5 DPSCA (which isn't present in the Cth provisions) is invalid, on the grounds that the trafficking offence in the DPSCA has been inoperative since 2005? Momcilovic's counsel would be mad not to rely on Dickson at the HCA. The Charter issues will have to wait until another day (although the continuing status of the VCA declaration of inconsistent interpretation would be a mystery.)Dickon's case, too, would have raised some interesting Charter s. 25(1) points, given the issue of his co-conspirators' acquittals. But, of course, he won't be able to raise the Charter in a federal prosecution (though perhaps s80 of the Constitution might lead to a similar approach?)
If the HCA sticks to its guns, then surely there'll be problems for all state laws that overlap with federal ones.For instance, most of Part 5 of the DPSCA has, since 2005, overlapped with most of Part 9.1 of the Cth CC. Surely, Dickson AT LEAST means that (a) Vic's conspiracy provisions have been inoperative in their application to state trafficking and possession charges since 2005; (b) Vic's trafficking and possession charges have been inoperative in all jury trials (where majority verdicts are available) since 2005.And, given that the Cth provisions lack Vic's nasty deemed possession provision, arguably all of Vic's trafficking and possession offences have been inoperative since 2005. Note that, because of the HCA's Metwally decision, none of these problems can be retrospectively fixed. Even fixing them prospectively will be tricky, given the difficulty of avoiding the 'covers the field' jurisprudence.'Tightly reasoned'? More like 'lightly reasoned'! How exactly does an overlap between state and federal criminal law detract from either? And why do a few token differences between the applicable definitions and procedures – none of which were in play in this case – matter at all? And all that twaddle about s109 providing certainty? How is the need to obey two different laws – federal, state, whatever – uncertain? Overlapping offences, and different procedural rights depending on prosecution choices, are simply the norm in all criminal justice systems, especially Australia's! Sure the federal system has its own special protections, but so does Victoria's (e.g. the Charter?) I was hoping that Bell J's arrival on the court would add some understanding of criminal law to the HCA, but it seems that she is just as liable to be swamped by the Gummow/Heydon juggernaut as everyone else.Tellingly, Dickson's counsel never wanted to raise this point until the HCA bullied him into it. (Sure, Dickson has had his conviction annulled, but he has lost the ability to rely on the acquittals of his co-conspirators, which also seem to have been annulled. Even if he does object in his federal prosecution, he won't be able to raise the Charter's presumption of innocence.) Also, tellingly, only two A-Gs (the Cth and SA, and NOT Vic) intervened in this case. Obviously, no-one imagined the HCA would do anything this stupid. The entire argument (involving four parties) took just 80 minutes!!!Most likely, the HCA will back down on the implications of its judgment. But what happens in the meantime? Why shouldn't s109 applications be made in huge numbers in every drug trial across Australia? And what about the many proceedings where there is a possible federal element, but the truth can't be established until the trial is held? (On my reading of the transcript, it isn't at all clear that the parties conceded that the cigarettes belonged to customs.)A crazy and stupid decision. The HCA does lots of those, of course. But it's rare that they are also unanimous!
Note also the implications for Vera Momcilovic's coming Charter appeal in the HCA. Surely her conviction (in 2008) by a jury (without the application of s80) and using s5 DPSCA (which isn't present in the Cth provisions) is invalid, on the grounds that the trafficking offence in the DPSCA has been inoperative since 2005? Momcilovic's counsel would be mad not to rely on Dickson at the HCA. The Charter issues will have to wait until another day (although the continuing status of the VCA declaration of inconsistent interpretation would be a mystery.)Dickon's case, too, would have raised some interesting Charter s. 25(1) points, given the issue of his co-conspirators' acquittals. But, of course, he won't be able to raise the Charter in a federal prosecution (though perhaps s80 of the Constitution might lead to a similar approach?)
Dickson may not end up playing a large role in Momcilovic, depending on how s300.4 of the Code operates. The High Court at [36] and [37] left open the operation of the non-exclusion provisions declaring that, because there was no equivalent provision that directly applied to s11.5, it was unnecessary to decide the question. On its face, s300.4 and similar provisions are incredibly powerful, saving State laws even if there is a difference in fault elements or the availability of defences.The worrying issue is whether the Commonwealth can legislate to override s109 of the Constitution in circumstances of direct inconsistency. I believe its arguable that provisions like 300.4 are valid, but haven't researched the matter to know for sure. Its also possible that the High Court would adopt a very narrow reading of the non-exclusion provisions and say that, in the case of conspiracy, an overt act is not a fault element, because of the definition of 'fault element' in the Code, and hence the non-exclusion provision is of no effect.If 300.4 and similar provisions are valid, then the flow-on from Dickson may not be as great as feared. It would limit the effect of the decision to overlapping offences where there is no non-exclusion provision. Parliament can swiftly respond by adding a non-exclusion provision to the inchoate liability provisions of s11, though granted, that won't help the retrospectivity issue. And therein lies the odd thing about the decision – The presentment was invalid only because the prosecution needed to rely on conspiracy. If the accused had committed the offence personally, s261.1 may have applied to save the conviction. As a matter of policy, the lack of a non-exclusion provision in s11 looks like an oversight.
Dickson may not end up playing a large role in Momcilovic, depending on how s300.4 of the Code operates. The High Court at [36] and [37] left open the operation of the non-exclusion provisions declaring that, because there was no equivalent provision that directly applied to s11.5, it was unnecessary to decide the question. On its face, s300.4 and similar provisions are incredibly powerful, saving State laws even if there is a difference in fault elements or the availability of defences.The worrying issue is whether the Commonwealth can legislate to override s109 of the Constitution in circumstances of direct inconsistency. I believe its arguable that provisions like 300.4 are valid, but haven't researched the matter to know for sure. Its also possible that the High Court would adopt a very narrow reading of the non-exclusion provisions and say that, in the case of conspiracy, an overt act is not a fault element, because of the definition of 'fault element' in the Code, and hence the non-exclusion provision is of no effect.If 300.4 and similar provisions are valid, then the flow-on from Dickson may not be as great as feared. It would limit the effect of the decision to overlapping offences where there is no non-exclusion provision. Parliament can swiftly respond by adding a non-exclusion provision to the inchoate liability provisions of s11, though granted, that won't help the retrospectivity issue. And therein lies the odd thing about the decision – The presentment was invalid only because the prosecution needed to rely on conspiracy. If the accused had committed the offence personally, s261.1 may have applied to save the conviction. As a matter of policy, the lack of a non-exclusion provision in s11 looks like an oversight.
Yes, if they stuck to their guns they would. But the HC will tighten the scope of 109 dominance in future decisions for purely pragmatic reasons. They will probably rely on provisions like sects 300.4, 360.4, 400.16, 472.1 and 475.1 CCC. That will not accord with their own logic in Dickson's case. The issue of parliamentary intention was purely obiter. The court's decision was made by para 30. It identified Dixon's two distinct lines of inconsistency that bring 109 in from the Kakariki case. The court said it would still have quashed the conviction on the indirect inconsistency but did not need to as it had already found a direct collision of laws. A direct inconsistency cannot be remedied by statute because it occurs at constitutional level, ie. a provision which reads: “This law is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory,” is relevant to identifying the intention of parliament but does not overcome the requirements of 109 if the HC find that it does have that effect.
On Dickson's logic, the conspiracy charge is neither here nor there. If Dickson had just been charged with theft (via the complicity provisions, for instance) then the argument would still remain that Chapter 2's provisions on physical elements, fault elements, extensions of liability and defences are still more generous than Victoria's common law equivalents. Actually, Dickson could now be charged under s.135.1 of the CC, which is much less generous than Victoria's common law, again showing how stupid the 'inconsistency' argument is.The lack of a non-exclusion provision in Chapter 2 of the CC is no oversight. Chapter 2 does nothing at all on its own, so it doesn't need any sort of savings provision. Rather, Chapter 2 only does things in combination with other federal offences, so its for those offences that a non-exclusion provision is needed (to avoid covering the field).As others have noted, direct inconsistency can't be prevented by a non-exclusion provision anyway. (Nor could the argument based on s80 of the Constitution, obviously.) Of course, the HCA won't follow through, but any 'distinguishing' of this judgment will just be a fiction to save the HCA from further embarrassment.
Yes, if they stuck to their guns they would. But the HC will tighten the scope of 109 dominance in future decisions for purely pragmatic reasons. They will probably rely on provisions like sects 300.4, 360.4, 400.16, 472.1 and 475.1 CCC. That will not accord with their own logic in Dickson's case. The issue of parliamentary intention was purely obiter. The court's decision was made by para 30. It identified Dixon's two distinct lines of inconsistency that bring 109 in from the Kakariki case. The court said it would still have quashed the conviction on the indirect inconsistency but did not need to as it had already found a direct collision of laws. A direct inconsistency cannot be remedied by statute because it occurs at constitutional level, ie. a provision which reads: \”This law is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory,\” is relevant to identifying the intention of parliament but does not overcome the requirements of 109 if the HC find that it does have that effect.
On Dickson's logic, the conspiracy charge is neither here nor there. If Dickson had just been charged with theft (via the complicity provisions, for instance) then the argument would still remain that Chapter 2's provisions on physical elements, fault elements, extensions of liability and defences are still more generous than Victoria's common law equivalents. Actually, Dickson could now be charged under s.135.1 of the CC, which is much less generous than Victoria's common law, again showing how stupid the 'inconsistency' argument is.The lack of a non-exclusion provision in Chapter 2 of the CC is no oversight. Chapter 2 does nothing at all on its own, so it doesn't need any sort of savings provision. Rather, Chapter 2 only does things in combination with other federal offences, so its for those offences that a non-exclusion provision is needed (to avoid covering the field).As others have noted, direct inconsistency can't be prevented by a non-exclusion provision anyway. (Nor could the argument based on s80 of the Constitution, obviously.) Of course, the HCA won't follow through, but any 'distinguishing' of this judgment will just be a fiction to save the HCA from further embarrassment.