Attorney-General (WA) & Anor v Marquet

The High Court of Australia considered an appeal by the Attorney-General of Western Australia and the State of Western 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 dispute centred on whether these amendments, which introduced new offences relating to the possession of child exploitation material, were constitutionally valid.

The primary legal issue before the High Court was whether the *Criminal Code Amendment Act 2002* (WA) was invalid by reason of inconsistency with the *Commonwealth Criminal Code Act 1995* (Cth), pursuant to section 109 of the Australian Constitution. This involved an examination of the scope and operation of both the Commonwealth and State legislation, and whether they created irreconcilable conflicts.

The Court reasoned that for a State law to be invalid under section 109, there must be a "real conflict" between the Commonwealth and State provisions, meaning that it is impossible to obey both laws, or that the Commonwealth law evinces an intention to cover the field. In this instance, the Court found that the State legislation did not create such a conflict. The Commonwealth Criminal Code dealt with the possession of child exploitation material in a different manner and with different penalties than the Western Australian amendments. However, the Court determined that the State law did not prevent compliance with the Commonwealth law, nor did the Commonwealth law demonstrate an intention to exclusively regulate the subject matter. Therefore, the State Act was not rendered invalid by section 109 of the Constitution.