Attorney‑General for Western Australia and State of Western Australia v Laurence Bernhard Marquet

The Attorney-General for Western Australia and the State of Western Australia (the appellants) appealed to the High Court of Australia against a decision of the Supreme Court of Western Australia concerning the validity of certain provisions of the *Criminal Code Amendment Act 2002* (WA) (the Act). The dispute arose from the prosecution of Laurence Bernhard Marquet (the respondent) under these provisions, which criminalised the possession of documents likely to be useful to a person committing or preparing for an act of terrorism. The respondent had been found in possession of such documents, and the Supreme Court had previously declared the relevant sections of the Act invalid.

The High Court was required to determine whether the impugned provisions of the *Criminal Code Amendment Act 2002* (WA) were invalid by reason of inconsistency with the *Constitution* of the Commonwealth, specifically under section 109. This involved considering whether the Act impermissibly encroached upon the implied freedom of political communication, which is protected by the *Constitution*. The central question was whether the provisions, by criminalising the possession of information without requiring proof of a specific intent to use that information for a terrorist purpose, unduly burdened the freedom of individuals to communicate and access information on matters of political and social significance.

The High Court, by majority, held that the provisions of the *Criminal Code Amendment Act 2002* (WA) were invalid. The majority reasoned that the Act, by creating an offence based on the mere possession of documents likely to be useful for terrorism, without requiring proof of a guilty mind or intention to further a terrorist purpose, placed an unjustified burden on the implied freedom of political communication. The Court found that the breadth of the prohibition extended beyond what was reasonably necessary to protect national security and thereby infringed upon the constitutional freedom to discuss and disseminate information on matters of public concern, including those related to government policy and potential threats. The Court applied the proportionality test, assessing whether the law was suitable, necessary, and adequate in its balance to achieve a legitimate purpose without unduly impairing the freedom.

The appeal was dismissed, and the declaration of invalidity made by the Supreme Court of Western Australia was affirmed.