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Supreme Court to rule on constitutional validity of NSW Drug Law by Kate Finlayson 12 November 2013
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western NSW drug supply case being decided in the NSW Court of Criminal Appeal today will have important implications for the direction of drug law in NSW. The five-judge bench will deliver judgment tomorrow in the Aboriginal Legal Service (NSW/ ACT)’s appeal of Lillian Ratcliff v Regina, a case originating from Parkes NSW. The Court will decide whether section 109 of the Constitution of Australia means that the NSW offence of supply is inconsistent with the drug law of Australia, and therefore of no legal effect. Principal Legal Officer and solicitor for the accused, Felicity Graham (pictured) says the conflict between NSW and Australian drug law causes confusion, inconsistency and unfairness. “A person can receive a maximum penalty of 2 years imprisonment plus a small fine, or 15 years imprisonment and a very large fine, for the same conduct, depending on whether they are tried under Australian or NSW laws,” says Ms Graham. “The drug law of Australia carefully ensures that users are not treated as drug traffickers unless they are actually involved in commercial activities. The drug law of Australia does include offences of possession and cultivation, but reserves severe criminal punishment for those involved in what the community would truly regard as commercial drug activity. “NSW law in this area however remains draconian, with the state offence of supply basically unchanged since the 1960s, and affecting not only adults but
children and young people as well. “Under NSW law, a child who takes two ecstasy pills to a music concert and hands them to a friend is charged under the same provision as the ‘big fish’ of the commercial drug trade. Both are treated as suppliers under section 25 of the Drug Misuse and Trafficking Act 1985. By contrast, the drug law of Australia says the child is guilty only of possession and should be dealt with as a user. “With conflicting laws, police and prosecutors have to decide which law should be used. The scope for unfairness and inconsistency is obvious. “My client Ms Ratcliff was charged with two counts of supplying a prohibited drug. It is alleged that she had possession of dexamphetamine and morphine in her handbag for the purpose of
supply. “The ALS has the opportunity to make these arguments because Ms Ratcliff decided to fight an important point of legal principle. “This case concerns the fundamentally important question of whether the federal Parliament’s adoption of harm minimisation principles in the drug law of Australia can effectively be overridden by draconian state drug law such as we have in NSW. “The ALS has argued vigorously that the Constitution in these circumstances voids state law. “What the case highlights is that NSW drug law is operating on the basis of policy developed in the 1960s. “The Supreme Court agreed to sit as a full court in recognition of the significance of the issue.
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