R v Marchant

Case [2001] QDC 325

DISTRICT COURT OF QUEENSLAND

CITATION:  R v. Marchant [2001] QDC 325
PARTIES:  THE QUEEN v. TENNILLE ANNE MARCHANT
FILE NO/S:  Indictment 2353 of 2001
DIVISION: 
PROCEEDING:  Application for ruling under s.592A.
ORIGINATING 
COURT: 		 District Court Brisbane
DELIVERED ON:  17 December 2001
DELIVERED AT:  Brisbane
HEARING DATE:  30 November 2001
JUDGE:  McGill DCJ
ORDER:  Application to be listed for further hearing
CATCHWORDS:  CRIMINAL LAW – Indecent acts – whether occurred in
“place to which the public have access”.
CONSTITUTIONAL LAW – Inconsistency of Laws –
whether prohibition of indecent acts inconsistent with
Commonwealth legislation applying Art 17 of the
International Covenant on Civil and Political Rights.
WORDS AND PHRASES – “place to which the public has access”.
Criminal Code s.227(1)(a).
Human Rights (Sexual Conduct) Act 1994 (Commonwealth)
International Covenant on Civil and Political Rights Art 17.
Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948]1 KB 223 - cited
Coeriel & Anor v. The Netherlands (UNHRC
Communication 453/91) - considered
Fox v Sawdy, ex parte Fox [1980] Qd.R. 378 - applied
McIvor v Garlick [1972] VR 129 – followed
R v. Arnold [1993] 30 NSWLR 73 – applied
Schubert v. Lee (1946) 71 CLR 589 – followed
Toonen v. Australia (UNHRC Communication 488/92) –
considered
Ward v Marsh [1959] VR 26 - followed
COUNSEL:  S. Vasta for the Crown
P.E. Nolan for the accused
SOLICITORS:  Director of Public Prosecutions for the Crown
Harris Sushames for the accused

  1. This is an application under s.592A of the Criminal Code for a ruling prior to the trial on whether the indictment should be quashed. The ground of the application, as set out in a summary of argument filed on behalf of the applicant, is that the provisions of s.227 of the Criminal Code, against which the applicant is charged with having offended, are inconsistent with s.4 of the Human Rights (Sexual Conduct) Act 1994 (Commonwealth). Reliance is placed on s.109 of the Australian Constitution; the requirements of the Judiciary Act as to service of notice on the Attorneys-General have been complied with.

  2. The indictment presented on 13 September 2001 charged the applicant that on “the 13th day of April 2001 at Brisbane in the State of Queensland [she] wilfully and without lawful excuse did an indecent act at a place to which the public were permitted to have access.” This charges an offence against the first limb of s.227(1) of the Criminal Code. That section provides as follows:

    “(1) Any person who –

(a)

wilfully and without lawful excuse does any indecent act in any place to which the public are permitted to have access, whether on payment of a charge for admission or not; or

(b)

wilfully does any indecent act in any place with intent to insult or offend any person;

is guilty of a misdemeanour, and is liable to imprisonment for two years.
(2) The offender may be arrested without warrant.
(3) Subsection (1) does not apply to a person who does an indecent act
under the authority of an…

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R v Marchant [2001] QDC 325
Case
[2001] QDC 325
Decision Date

CaseChat Overview and Summary

The case of R v Marchant was heard in an Australian court, where the central issue was whether certain indecent acts occurred in a public place. The legal questions addressed pertained to the interpretation of the term “arbitrary” as used in Article 17 of an international convention, and the extent to which this term influences the validity of State legislation under Australian law. The court had to determine the meaning of “arbitrary” in the context of the Commonwealth Act and how it interacts with the State legislation, as well as the scope of “public place” under the Act.

The court's reasoning focused on the interpretation of the term “arbitrary” and its application in the context of the Commonwealth Act. It was noted that equating “arbitrary” with “unreasonable” raises questions about the test for determining the validity of State legislation. The court considered whether the test should be whether the court finds the State Act unreasonable, or whether the State legislation would be upheld if it could be considered reasonable. This interpretation would recognise the democratic principle that curtailing non-absolute freedoms by legislation is primarily a matter for the legislature. The court also explored the concept of “public place” as defined in the Act, encompassing areas accessible to the public, whether freely or for a fee, and considered whether a room within a building could qualify as such.

The court concluded that the meaning of “arbitrary” in Article 17 of the Covenant must be determined independently, without reference to interpretations by the Human Rights Committee or the political purpose behind the Commonwealth Act. The term “public place” under the Act was interpreted to include a room within a building if the public is permitted access. The court decided to list the application for further hearing to explore these issues in greater depth.

Orders

Orders of the court

Application to be listed for further hearing

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is difficult to know to what extent (if indeed at all) the meaning of the term “arbitrary” in Article 17, for the purposes of enforcing Australian law under the Commonwealth Act, is to be determined by reference to the interpretation placed on it by the Human Rights Committee. Equating “arbitrary” with “unreasonable” also throws up the question of whether, for the purposes of deciding whether a State Act is invalid as inconsistent with the Commonwealth Act, the test is whether the court thinks that the State Act is unreasonable, or whether the State legislation would be preserved if the court found that it was capable of being regarded as reasonable. The latter interpretation would recognise that in a democracy the determination of the extent to which non-absolute freedoms are to be curtailed by legislation is prima facie a matter for decision by the legislature. It would involve the sort of test of unreasonableness expounded by Lord Greene MR in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 230.[6] Unless that interpretation were adopted, the Commonwealth Act would operate as an invitation to judicial activism, with judges being able to strike down State legislation simply on the basis that it interfered with the matters referred to in Article 17 in a way that they regarded as unreasonable, which could mean no more than a way of which that judge personally disapproved. It would be essentially a subjective test. [6] Applied by Gibbs J in Parramatta City Council v. Pestell (1972) 128 CLR 305 at 327, and discussed by Brennan J in Attorney –General (NSW) v. Quin (1990) 170 CLR 1 at 36. There is some English authority that, in a commercial context, a prohibition on acting “arbitrarily” is to be construed as a prohibition on acting without any reasonable cause: Treloar v Bigge (1874) LR 9 Exch 151 at 155; Barrow v Isaacs [1891] 1 QB 417 at 419; Mills v. Cannon Brewery Co [1920] 2 Ch. 38 at 45. That would ordinarily mean any cause capable of being regarded as reasonable. Plainly legislation which prohibits interference by a State through its legislation in conduct which, under an international convention to which Australia is a party, is to be protected by law is within the legislative capacity of the Commonwealth Parliament under s.51(xxix) of the Constitution. But in view of the way the Act is drafted what matters is what the term “arbitrary” really means in Article 17 of the Covenant, not what Parliament might have thought it meant, or the Attorney- General thought it ought to mean, or various members of the Human Rights Committee think it means, nor indeed by reference to the political purpose which the Commonwealth legislation was intended to achieve. I am not aware of any authority on the meaning of the word in this section of this Act, and, since I can resolve this matter without deciding this point, I propose to do so and say nothing more about it. The expression in s.227 “any place to which the public are permitted to have access, whether on payment of a charge for admission or not” contemplates not only places to which there would be unrestricted public access, such as a public street or public park, but also places which, although under the control or in the occupation of a particular person or entity, the public are allowed to enter, either indiscriminately or on payment of a fee[7]. The word “place” could cover a number of different areas or subdivisions of space: it could be a large enclosed area to which admission is obtained, such as the RNA Showgrounds[8], or it could be a whole building such as an historic home which is open for inspection, or a room or collection of rooms within a building[9], such as the auditorium of a theatre[10], or perhaps even some subdivision of a room, in an appropriate case.[11] It may be a temporary structure or enclosure.[12] The present case involves a room within a building; it is not necessary for me to consider whether anything less than this, or for that matter anything more than this, could be a place. [7] [8] Toomey v. Williams, ex parte Williams (1898) 8 QLJ 148 – concerning Woolloongabba Cricket Ground. [9] Ward v Marsh [1959] VR 26 – ground floor of Myer emporium was a public place, although not all parts of the building were open to the public. [10] [11] A toilet is a public place if it is available to the public: R v Harris (1871) LR 1 CCR 282; Moloney v Whitwell [1924] VLR 454; but not if it is ordinarily used only by a limited group, such as employees: O’Sullivan v Brady [1954] SASR 140 at 142. [12] R v Saunders (1875) 1 QBD 15.