Ratcliff v. The Queen & Anor; Buckman v. The Queen & Anor

[2014] HCATrans 204

[2014] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 2014

B e t w e e n -

LILLIAN RATCLIFF

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry
  Sydney  No S33 of 2014

B e t w e e n -

KERRY ANN BUCKMAN

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 10.21 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, in the Ratcliff matter I appear with my learned friends, MS A.P. HEALEY and MR P.D. LANGE, for the applicant.  (instructed by Aboriginal Legal Service (NSW/ACT) Ltd)

MS C.T. LOUKAS, SC:   May it please the Court, I appear with my learned friends, MS J.R. LUCY and MS Z.C. HEGER, for the applicant, Ms Buckman.
(instructed by Legal Aid NSW)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS G.E. WRIGHT, for the second respondent in each matter.  (instructed by Crown Solicitor (NSW))

FRENCH CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, it is of course established that provisions such as are in this case relevantly contained in 300.4 of the Criminal Code are relevant to an understanding of the Commonwealth law posited in a section 109 argument as presenting inconsistency with a relevant State law.  It is also equally established that it is not conclusive of that question of inconsistency and could not be.  If one is to revert, for the sake of brevity and convenience, to established jargon, perhaps I should say, once upon a time established jargon, provisions like 300.4 made it very difficult to say, here was a field with relevant boundaries, let alone with relevant coverage.

On the other hand, it is clearly established that the meaning of laws, for the purposes of section 109, is emphatically for this Court and not for Parliament to ascertain.  It is for those reasons that in well‑known passages such as those recently brought to attention again in Dickson, that is Dickson v The Queen 241 CLR 491 at 502, paragraph 13, that is, Sir Owen Dixon’s famous explanation in Victoria v The Commonwealth, and then taken up by the joint reasons of the whole Court in Telstra v Worthing.

When one sees those two, which again if I may use handy if ultimately misleading terminology, divide into the direct and indirect species of inconsistency and apply the appropriate caution against argument proceeding by labels rather than by concepts, nonetheless what one has whenever there is a State and Commonwealth criminal regime arguably applicable to the same conduct by the same offender, then questions of inconsistency must arise, I stress, questions of inconsistency must arise.  First of all, we say that there was error below, for the reasons we have put in writing, in the Court of Criminal Appeal perceiving that section 300.4 was in any way a solvent of the matter.

I will not pursue that further.  In principle we are on ground that could not be attacked in that regard.  It is certainly therefore the case that the time‑honoured formulation of detracting, impairing or detracting, relatively, from the operation of the Commonwealth law, is at the heart of the argument upon which we failed below and for which we seek special leave here.  It is also the case, in our submission, that soon after Dickson there has been, in this case in the Court of Criminal Appeal, a purported application of Dickson with an outcome which, in our submission, sits most oddly with the actual outcome of Dickson given the reasons of Dickson.  We say this as you have seen because there is a collection of factors quite apart from disparate penalty provisions, there is a collection of factors which differentiate the Commonwealth from the State approach to the relevant offending conduct.

FRENCH CJ:   Do you say that this State law in its application to gratuitous supply closes off an area of liberty left by the Commonwealth law?  I think you made a concession about possession for the purpose of gratuitous supply under the Commonwealth law.

MR WALKER:   Yes to the last part of your Honour’s question to me.  That is why it is worthy of a grant of special leave because this is a matter not covered by Dickson.  Dickson certainly deals with the area left free, liberty left unconstrained, or to use the expression, conduct not covered, and this idea of a deliberate definition of “offending conduct”, which by definition, that is, by the act of definition, leaves that which is outside the definition unregulated.

FRENCH CJ:   Under the imputed intention to leave free a particular zone of conduct.

MR WALKER:   Now, this case is worthy of a grant because it comes to the next area which is what happens the area is not left, to use Chief Justice Bathurst’s appropriate expression, decriminalised – I suppose it really means, non‑criminalised – but rather in a way familiar to and at the heart of criminal legislation reflects gradations of gravity, both by reference to the elements of the offence as well as, of course, to the attached penalties.  They cannot be severed, they are all part of the same scheme of criminal regulation.

Now, criminal regulation obviously speaks to two classes of persons, relevantly, those who have committed the offence as to what needs to be proved and what may be levied by way of punishment, and to the less specific group of people who may be deterred, who will know the conduct which is accordingly punishable.  For both, for both, particularly bearing in mind the social purpose of punishment for accomplished crime, gradation reflected both in the selection of elements of an offence, that is, the conduct which will be nefarious, as well as gradation that is the kind of maximum penalties or penalties that may be applied, is of the essence of effectiveness of the law.

Otherwise it would make no sense for common law sentencing principles to speak as they unquestionably do and with one voice about relative severity of penalties and the efficacy of deterrence.  It is in that fashion, the non‑appearance of a distinction which is deliberately and carefully worked out in the Commonwealth law in the corresponding provisions of the State regulation of the same kind of conduct that there is the impairment or detraction that produces the section 109 inconsistency to which section 300.4 cannot talk.  That, in our submission, is a focused, discreet, and manifestly important issue for this Court to consider.

One of the reasons for its manifest importance is that apart from 109, that is, Commonwealth legislative activity given paramountcy, sole sway, as the regime to govern in this country by 109, there is another way in which criminal law can be, as it were, rendered uniform or speaking with one voice, and that is the promulgation of so‑called uniform schemes, such as by the law reform exercise referred to in paragraph 9 of my written submissions at application book 86, lines 35 and following, which obviously did not bear fruit or least the fruit dropped off the tree pretty quickly.

Now, that is why it is important, in our submission, given the possibility of those political projects and the possibility of their failure, it is important for this Court to consider whether section 109 ultimately gives to the Commonwealth Parliament an authority to promulgate laws the distinctions in which, the gradations of gravity in which, for the purposes of the criminal regulation of conduct, will be paramount to the exclusion of different State approaches and regardless of provisions such as 300.4.

FRENCH CJ:   The Commonwealth provisions are designed to give effect to an international convention and its purposes, are they not?

MR WALKER:   No, no, no.  At the end of the day, yes, there is at least one treaty that can be invoked, there may actually nowadays be more than one, yes.  So the question, if I may call it, of Commonwealth competence goes without saying in a case such as the present, and obviously there is no such thing as intensity of Commonwealth competence, you are competent or you are not, and that, in our submission, is the importance of the approach taken in the argument which we would wish to present to the Court under 109, this case presents the opportunity for the Court to consider not just a State law impairing or detracting from a Commonwealth, I will call it, scheme, leaving certain conduct not liable to criminal punishment, but also to something that might be regarded as an even more obviously deliberate choice by the Commonwealth Parliament, namely, to regulate the conduct by reference to a combination of constituent elements, and the penalty that may be visited upon their proof in a way which is materially different, and it certainly is materially different in this case, that in which a State has purported to legislate.

Now, your Honours have seen, I do not need to elaborate much the extent and kind of difference in this case, but just to touch on them in a brief list, in particular, what the Chief Justice handily calls “gratuitous supply”, understood in the sense of possession not for the purpose of deriving financial return.  That, in our submission, is treated very differently by dint of what I will call the extended definitions at play in both schemes.  That, particularly when one considers the policy questions that may go to the criminalising of possession for so‑called “gratuitous supply”, in relation in particular to the question of children, to which reference is made in paragraph 9, bespeaks the kind of deliberateness that invites the adaptation of a Dickson approach to this case.

I say “the adaptation” because I stress Dickson did not decide the issue in this case.  It was a lack of regulation as opposed to a different kind of regulation, and for those reasons, in our submission, your Honours, there are differences which ought to excite disquiet as to the different approaches the two legislatures have taken to the same problem.

FRENCH CJ:   What do you say about the analysis that Chief Justice Bathurst undertakes with respect to the application of what the Court has already said in Momcilovic? I am looking at paragraph 88 at page 71 of the application book, the preceding paragraphs as well. In other words, he takes out something which does not depend upon the difference between “stringency” in the Victorian drug legislation and the Commonwealth Code which was a factor in Momcilovic.

MR WALKER:   The first thing is that I hope I have been careful never to focus just on penalty, and obviously I have done that because there is, as Chief Justice Bathurst points out, a challenge, I do not say a bar, but a challenge in relation to Momcilovic in that regard.  It is the whole of the law in question, constituent elements plus penalties, which produces what I have called, the gradation of criminal regulation in question.  We say that gradation is conceptually of exactly the same kind as in or out, the first step is whether you render it criminally punishable at all and that is a step up from it not being criminally punishable.  So that paragraph 88 at page 71 of the application book is not an answer to an argument of that kind at all, and in particular is not an answer to the selection of elements differently so as to render an offence considerably less serious given the same set of elements under Commonwealth law as it would be under State law.

FRENCH CJ:   We are not talking about a question of constitutional principle, it is rather application to the two particular statutes, is it not, in this case?

MR WALKER:   No, we are actually talking about whether in principle under section 109 the treating differently in a material way of events by the criminal law given the purpose of criminal law, as I say to punish as well as deter, whether that is an inconsistency giving rise to what used to be called direct inconsistency under 109 regardless of provisions and interpretive outcomes such as those obviously intended by those who drafted section 300.4.  So, yes, that is a question of principle.  It is peculiarly focused but not restricted to matters of crime, it happens to be given real point in relation to crime, and references to areas of liberty obviously have more resonance when confronted with issues of criminal regulation.

Now, we are not talking about liberty literally here because we are not talking about no criminalisation at all, but there is a great deal of importance for ordinary offenders and for the common wheel in understanding how seriously certain conduct is treated by the relevant or applicable Criminal Code.  The seriousness, which is more than just penalty – what elements have to be proved – the seriousness in this case is highlighted very graphically by what might be called the admixture provisions to which we have made reference on page 84 of the application book in Part III – sorry, on page – I do apologise – 90 of the application book starting at paragraph 30, about line 25.  I will not dwell on it.

FRENCH CJ:   Is it how much of the drug you are taken to have ‑ ‑ ‑

MR WALKER:   This is another way in which gravity is greatly affected in the different treatments by the two schemes.  It is certainly not just penalty or even penalty at all, although everything that ends up in criminal liability will also entail something in the nature of penalty, and it is for those reasons, in our submission, and including seeking to understand in a concrete case the relevance to 109 argument of a combination of differences, not just penalty, and that this case, in our submission, is an appropriate one and an appropriate vehicle for the grant of special leave to raise these points.  May it please your Honour.

FRENCH CJ:   Thank you.  Yes, Ms Loukas.

MS LOUKAS:   Yes, thank you, your Honour.  I should indicate there is an application for an extension of time in this matter.  That is at appeal book 110.

FRENCH CJ:   Is that opposed, Mr Solicitor?  Extension is granted.

MS LOUKAS: We adopt the submissions of our learned friend, Mr Walker of Senior Counsel. The special leave question raised by our application is common to both applicants and, your Honour, there is only one matter on which we propose to make brief additional submissions and that is in relation to paragraph 85 of the judgment. That is, your Honours, at appeal book 70, where the Chief Justice indicates in relation to the section 300.4 concurrent operation of a State statute. There the Chief Justice talks about the fault element and it is critical just in relation to that paragraph to note that Division 5 of the Criminal Code in relation to fault elements makes it clear that fault elements go through the gradation of “intention, knowledge, recklessness or negligence”, we say contrary to the point that is being made there in paragraph 85 in relation to intention to sell and intention to supply.

Now, your Honours, but for that brief additional submission in relation to paragraph 85 and the fault element of the Criminal Code, we adopt the submissions of our learned friend, Mr Walker, your Honour, in both the written submissions of the applicant and the oral submissions of Mr Walker.  May it please the Court.

FRENCH CJ:   Yes, all right, thank you.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, my learned friend, Mr Walker, used the phrased, “gradations of gravity” in the course of his submissions and in our submission that highlights the problem that is raised by his submissions.  What we have here are, in a sense, parallel codes at the federal and State level in relation to drug offences but codes where there is considerable overlap and underlap, and this is one of those examples but many others, of course, could be found in relation to these codes.  That is the point which I will come to slightly later of section 300.4 of the Commonwealth Code which is designed to allow the continuing operation of the State offences in this area.

But it might be noted perhaps at the outset that talking here about different offences in relation to the two schemes of regulation, section 25 deals with the offence of the Drug Misuse and Trafficking Act, deals with the question of supply, whereas section 302.4 of the Commonwealth Code is concerned with the offence of trafficking.  Now, each of those offences contains a commercial element, but the purpose of the – and particularly in relation as well in the Commonwealth Code, but the State legislation has the purpose of controlling the use and supply of prohibited drugs in New South Wales, even where there is no commercial aspect in relation to that offence.

Now, in our submission, this is a very different case from Dickson where it was found that the Commonwealth Parliament had designedly left an area of liberty in the light of the Codes, whereas here in the light of the Codes’ treatment of possession, which can be likened to gratuitous supply, it is not a case where an area of liberty has been left open by the Commonwealth Parliament, and we would say that in any event, that Dickson is a rather unusual case.  It was a case where the federal and the Victorian laws dealt with the same offence of conspiracy, and it was held by this Court that the Commonwealth had made a deliberate legislative choice to alter the common law by ‑ ‑ ‑

FRENCH CJ:   In relation to Commonwealth entities.

MR SEXTON:   Yes, and I was going to say that is right, by substantially narrowing the offence of conspiracy, whereas the State provision had picked up the common law, a crime of conspiracy without any alteration and as your Honour points out, and it is important, in our submission, this was a case where the rule of the conduct under the Commonwealth law related to Commonwealth property, so it was an unusual case.

If I can come to section 300.4 of the Code, in our submission, even without section 300.4, in our submission, when one has a situation of approximately parallel schemes of regulation but with overlap and underlap in many, many instances, even without section 300.4, in our submission, it could not be said that this was a case like Dickson where one or more areas had been designedly left open by the Commonwealth, and in this case, of course, the same conduct is the subject of criminal liability, it is just a slightly different form of criminal liability.  But, when one adds in section 300.4, we would say that the intention of the Commonwealth legislation is perfectly clear about the continuing existence and the liability incurred under State legislation.  In Momcilovic Justice Gummow, with whom your Honour the Chief Justice agreed, considered that section 300.4, when supplemented by section 4C of the federal Crimes Act, had the result that ‑ ‑ ‑

FRENCH CJ:   That is the rollback provision?

MR SEXTON:   Yes, the fact that duplication of offences cannot occur.  Justice Gummow and your Honour said that upon its proper construction that provision, section 300.4 of the Commonwealth Code, indicates that the Code evinces no intention to deal exclusively and exhaustively with the prosecution and punishment of the acts prescribed by the trafficking provision that was in issue in Momcilovic, which is the same provision in issue here.

FRENCH CJ:   But in Momcilovic the point was made, I think, by Justice Gummow at paragraph 276 and by myself at paragraph 106 that State law was less stringent in its application than the code, and there was a point of distinction there I think with Dickson.

MR SEXTON:   It is.  In a sense, that is right, your Honour.

FRENCH CJ:   That is not this case.

MR SEXTON:   Well, that is so, your Honour.  But the point is that that is why I say that my friend used the phrase “gradations of gravity” and really this will go in both directions in relation to these two Codes, sometimes there will be less stringency, sometimes perhaps there may be more stringency, but that is in a sense the point of the Commonwealth provision, that it is intended to preserve the operation of the State legislation, whichever of those two things occurs.  As I say, even without that provision, one might think that given the two parallel Codes that there would be so many instances of that kind of stringency in one direction or the other that it could never be intended by the Commonwealth Parliament that in all of those instances that the State legislation would be effectively destroyed because the result of my learned friend’s submissions is that the two Codes could not operate together and in parallel in the way in which they have.

FRENCH CJ:   I think what Chief Justice Bathurst does at paragraph 88 of the judgment to which I referred Mr Walker is referred to the preceding sentence in Justice Gummow’s judgment in Momcilovic, that is, the deliberate exclusion from the rule of conduct of certain areas as the point of want of inconsistency if you like.

MR SEXTON:   Yes, and we obviously adopt that.

FRENCH CJ:   Point of inconsistency, I am sorry.  Yes.

MR SEXTON:   Yes, and we would obviously adopt that.  Your Honour, we have set out in our written outline at paragraph 15 the quote from the explanatory memorandum to the legislation that inserted section 302.4, which, again, makes the point that – and it uses the phrase:

Overlapping State and Territory drug offences will also continue to operate alongside the offences in Part 9.1 of the Criminal Code.

It is the overlap between these two schemes of regulation that, in our submission, in a sense makes it, we would say, just fanciful that the Commonwealth Parliament would have intended the sort of results that would come from my learned friend’s submissions.  Finally, on the question of – well, two matters, the differing penalties and the rules about calculating quantities.  We would say that after Momcilovic effectively the argument was rejected that a difference in penalties under the relevant provisions of the two schemes would give rise to inconsistency.  The cases in which that question had been raised was really in the context of covering the field rather than direct inconsistency, to use those two categories just for the moment but, in effect, that argument about differing penalties was rejected in Momcilovic.

As far as the admixture rule is concerned, as Chief Justice Bathurst points out, it is not at all clear from the two Codes which is more stringent and which is not but, in any event, as he said, that would not under the section 109 detract significantly from the Commonwealth law.  So, for all those reasons, your Honours, it is our submission that this is not a case for a grant of special leave and that these two schemes of regulation are able to operate together as they have for many years. 

FRENCH CJ:   Thank you, Mr Solicitor.

MR SEXTON:   If the Court pleases.

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in relation to Dickson, it is if anything a reason for special leave to explore this notion that 109 would operate differently if the law in question had not there been directed explicitly to dealings in Commonwealth property.  If one may suppose as a thought experiment the same law but instead of the reference to “Commonwealth” the expression “all, including Commonwealth” had been including, why should there be, or how could there have been, as a matter of reasoning, a

different approach to the application of the constitutional paramountcy provision in 109?  It does not lend itself, either by text or function to such a distinction.

It introduces an idea which ought to be exposed and exploded that there is, as it were, some relative intensity to different areas of Commonwealth legislative competence and there simply is not, there is competence or not.  The clarity on that kind of philosophical aspect of section 109 would be assisted, would be more closely approached, by a decision one way or the other in this case.  So far as concerns the differences, I should have, of course, drawn to attention as well that which the facts may not throw up but which the texts of the rival laws throws up, namely that under the State law agreement to supply will suffice without possession.

So here is an area of liberty that is closed up more, not less, stringently by State law that would not be so under Commonwealth law.  It is for those reasons, in our submission, that the answers that my learned friend gives to the application and impliedly to an appeal based upon Momcilovic really misfire.  Momcilovic does not decide the issues that we would seek to raise, and in particular, that which is said in Momcilovic about penalty is expressed in answer to a rather differently expressed contention and we, in any event, do not put a contention as bare as that.  It is for those reasons, in our submission, that this case does raise matter which has not yet been determined by this Court and would add most usefully to an understanding of a very important provision.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Ms Loukas.

MS LOUKAS:   Just briefly, your Honours.  The interests of justice, we say, favour the grant of leave in this case because the resolution of this constitutional question has a substantial bearing upon criminal proceedings and the drug laws of Australia.  May it please the Court.

FRENCH CJ:   Thank you.  Court will adjourn briefly to consider what course it should take.

AT 10.52 AM SHORT ADJOURMENT

UPON RESUMING AT 10.56 AM:

FRENCH CJ: The applicants were each charged with the supply of prohibited drugs contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The case against them was one of gratuitous supply. They contended, upon arraignment that section 25 was, by operation of section 109 of the Constitution, invalid on account of inconsistency with provisions of the Criminal Code (Cth), which prohibit trafficking but not gratuitous supply and impose different penalties for trafficking. It may be noted that possession for gratuitous supply would be an offence under section 308.1 of the Criminal Code (Cth). 

The Court of Criminal Appeal of New South Wales dismissed an appeal against the dismissal by the trial judge of applications for orders quashing the indictments.  The applicants applied for special leave against that decision.  In our opinion, the decision of the Court of Criminal Appeal accorded with the approach taken by this Court in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34. Special leave to appeal will be refused in each case.

The Court will now adjourn to reconstitute.

AT 10.57 AM THE MATTERS WERE CONCLUDED