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 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.
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.
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
(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.