Palmer & Anor v The State of Western Australia & Anor

The High Court of Australia heard an appeal concerning the validity of certain provisions of the *Criminal Code Amendment Act 2021* (WA) (the Act). The appellants, Palmer and another, challenged the constitutional validity of sections 13A and 13B of the *Criminal Code* (WA), as inserted by the Act, which created new offences relating to the incitement of violence against protected groups. The respondents were the State of Western Australia and the Attorney-General for Western Australia.

The central legal issue before the High Court was whether the impugned provisions of the Act were invalid by reason of inconsistency with section 117 of the *Constitution*, which prohibits discrimination against residents of one State in another State. The appellants argued that the Act, by creating offences based on the identity of the group against whom violence is incited, impermissibly discriminated against residents of Western Australia by imposing a burden not imposed on residents of other States.

Kiefel CJ, in delivering the judgment of the Court, found that section 117 of the *Constitution* was not engaged by the provisions in question. His Honour reasoned that the Act created offences that applied equally to all persons within Western Australia, regardless of their State of residence. The focus of the offences was on the act of incitement and the nature of the group targeted, not on the State of origin of the person inciting or the group being incited. Therefore, there was no discrimination against residents of one State in another State of the Commonwealth.

The appeal was dismissed.