New HCA Judgment: Dickson v The Queen

This decision was handed down today:

Dickson v The Queen [2010] HCA 30 

The High Court has unanimously allowed this appeal against a decision of the Victorian Court of Appeal. The case concerns s 109 of the Constitution which invalidates State legislation if it is inconsistent with Commonwealth legislation. The appellant was a former Federal Police officer who was convicted of conspiracy to commit theft of a large quantity of cigarettes from a Commonwealth Customs’ storage facility. The property which housed the facility was owned by a company called Dominion and because the owner of the property where the theft occurred was not a Commonwealth agency, the appellant was charged under state legislation. That legislation adopted the common law requirements of conspiracy. However, the Customs Department was leasing the property for storage. Accordingly, the cigarettes were also in the “possession” of Customs (being a Commonwealth agency) and so the appellant could have been charged under the Commonwealth Criminal Code. This was important because the Commonwealth Criminal Code provided for a far more limited test for the requirements of conspiracy. The High Court said that the State Act was inconsistent in so far as it purported to provide for an offence in such a case. It was said that the Commonwealth Act provided for a charge prohibiting a conspiracy to steal Commonwealth property, which charge specifically limited the requirements of conspiracy. Accordingly, any State Act that purported to provide for a charge in the same circumstances, but with fewer requirements would impose greater obligations on the accused and therefore “alter, impair or detract” from the operation of the Federal Act. Accordingly the state law was directly inconsistent with the Federal law and therefore invalid under s 109.


Comment
It is interesting to note that the Court relied on direct inconsistency rather than the “covering the field” test. Obviously it would seem easier to simply say that the Federal Act evinces an intention to be exhaustive on the subject of conspiracy to steal Commonwealth property. Instead the Court said that, by restricting the requirements of the charge, a state law which was wider than those restrictions was invalid. This case therefore has potentially wide implications to other offences of concurrent state and federal jurisdiction. This is particularly so given that the Court considered it relevant to the requirements of the offence that s 80 of the Constitution would require the jury verdict under Commonwealth law to be unanimous whereas state law would allow a majority verdict. As this is the case with most offences these days, an argument could be run that the Commonwealth Act need always be used if there may be concurrent jurisdiction. I don’t think the Court’s language was so wide as to suggest that the requirement of a unanimous verdict would be sufficient in itself to show that a state law “alters, impairs or detracts” from the operation of a Federal Act, but I’m sure there will be argument in Courts around the Country that it is. In any event, the moral of the story is that if a client of yours has been charged with a state offence, it is worth finding out whether the client has also committed a Commonwealth offence in so doing (eg it was done over the internet). You might be able to attract a charge which requires a unanimous verdict.