In last Friday’s hearings, the High Court refused special leave to two criminal defendants challenging the validity of NSW’s main drug offence: supplying, or knowingly taking part in the supply of, a prohibited drug. In refusing leave, the Court mostly put to rest doubts that have arisen in recent years about the continued operation of most state drug laws (and a number of other state criminal laws) that overlap with federal criminal laws.
The source of the recent doubts was a 2010 ruling by the High Court quashing a man’s conviction for the Victorian offence of conspiracy to steal, because the alleged theft (of cigarettes that had been seized by Customs) could have been charged under a similar federal conspiracy provision that was narrower than the Victorian one in some respects. A number of broader aspects of the unanimous ruling – that the constitutional issue was raised by the Court itself and that the judgment included language highlighting the different rules on jury trials for federal and state offences and deprecating the significance of federal provisions purporting to preserve the operation of state laws – led to concerns (e.g. voiced by some state Attorneys-General) that many other state criminals laws that operated concurrently with federal ones would be ruled inoperative, with potentially dire consequences for past prosecutions. Indeed, a year later, one High Court judge, Hayne J, held that Victoria’s trafficking offence has been inoperative since 2005, due to differences between Victorian and federal sentencing law.
However, in the same case, the remainder of the High Court, dismissed the challenge and, in varying ways, stepped back from their 2010 joint judgment. Nevertheless, doubts persisted about the validity of other states’ drug laws that diverged more drastically from the federal scheme. In NSW, for example, the main offence of supply covers non-commercial activities, something that the federal offence deals with separately from trafficking under the lesser and narrower offence of possession. In 2013, the NSW Court of Criminal Appeal nevertheless upheld the validity of the NSW law, and it is that ruling that has seemingly been confirmed by French CJ and Bell J at Friday’s hearing. Although some doubts about the validity of particular aspects of state drug laws remain (notably the use of conspiracy charges for state offences, and perhaps the use of deemed possession provisions), it is now likely that the bulk of state criminal laws are safe from plausible constitutional challenge.