Love v The Attorney-General for New South Wales & Anor; Peters & Anor v The Attorney-General for New South Wales

The case involved two separate applications heard together in the High Court of Australia. The first application, Love v The Attorney-General for New South Wales & Anor, concerned the Attorney-General for New South Wales and the Director of Public Prosecutions for New South Wales. The second application, Peters & Anor v The Attorney-General for New South Wales, involved Brent Richard Peters and Kathleen Maree Peters, also against the Attorney-General for New South Wales. The core of the dispute revolved around the interpretation of certain provisions of the *Customs Act* and their interaction with State criminal offences, particularly in the context of warrants and investigations.

The primary legal issues before the High Court were whether sections 219B(1) and (2) of the *Customs Act* created criminal offences, or merely declared certain conduct unlawful with potential evidentiary consequences. The court was also required to determine whether these provisions, or the scope of federal narcotics inquiries as defined in the Act, precluded the Australian Federal Police from investigating State offences, specifically in relation to the warrants issued in the present case. A further issue concerned the extent to which State offences, such as the supply and conspiracy to supply prohibited drugs, were distinct from and not entirely encompassed by the federal offences recited in the warrants.

The court considered the language of the *Customs Act*, contrasting section 219B, which used the term "unlawful," with section 219F, which imposed a penalty for prohibited conduct. This distinction led to the submission that section 219B was intended to establish a basis for the exclusion of unlawfully obtained evidence, rather than creating a criminal offence itself. The court also examined section 219A(2)(a) to define the scope of "narcotics inquiries" by the Australian Federal Police, arguing that this preclusion was limited. The court noted that State offences, such as conspiracy to supply, did not necessarily involve possession of the drug, and that the extended definition of "supply" under State law went beyond federal offences. The argument was made that there remained significant State-related matters for investigation that were not eclipsed by the federal scope of inquiries.