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 Full Court of the Supreme Court of Western Australia. The dispute concerned the validity of certain provisions of the *Criminal Code Amendment Act 2002* (WA) (the Act), which introduced new offences relating to the possession of child exploitation material. The primary respondent, Marquet, had been charged under these provisions.

The central legal issue before the High Court was whether the Act, by creating offences that criminalised the possession of child exploitation material even where the possessor had no intention to distribute or view the material, impermissibly infringed upon the implied freedom of political communication protected by the Australian Constitution. Specifically, the Court had to determine if the Act placed an undue burden on the implied freedom by criminalising conduct that might be engaged in for purposes unrelated to the dissemination or viewing of such material, and whether such a burden was reasonably appropriate and adapted to serve a legitimate end.

The High Court, by majority, held that the *Criminal Code Amendment Act 2002* (WA) was invalid. The majority reasoned that the Act imposed an unjustified burden on the implied freedom of political communication. They found that the broad scope of the possession offence, which did not require proof of intent to view or distribute the material, extended to conduct that could be engaged in for purposes not inimical to the public interest, such as the possession of material for academic research or law enforcement purposes. The Court applied the proportionality test, concluding that while the objective of protecting children from exploitation was legitimate, the means chosen by the Act were not reasonably appropriate and adapted to achieving that objective without unduly infringing upon the implied freedom.

The appeal was dismissed, and the Full Court's declaration of invalidity in relation to the impugned provisions of the *Criminal Code Amendment Act 2002* (WA) was upheld.