SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: On 19 June 2008 in the District Court at Ipswich, the appellant pleaded not guilty to eight counts of incest.  The appellant's trial before a judge and jury commenced on 13 October 2008.  At the close of the prosecution case, the appellant was discharged on counts 2 and 7.  On the fourth day of the trial, the jury returned guilty verdicts on all remaining six counts of incest.  He was sentenced to four and a half years imprisonment with parole release eligibility set at 16 January 2011.  The appellant initially applied only for leave to appeal against his sentence, contending that it was manifestly excessive.  At the hearing of that application on 9 February 2009, the Court expressed concern about the guilty verdicts because of the terms of s 222(8) Criminal Code 1899 (Qld).  The matter was adjourned to allow the appellant to apply for an extension of time to appeal against conviction.  This Court heard that application on 19 February 2009, granted the application for an extension of time, allowed the appeal, quashed the convictions and reserved its decision as to whether a re-trial should be ordered on any count.  The appellant was accordingly released from custody.  The Court indicated that it would make further orders and provide reasons at a later time.  These are my reasons for joining in the orders of 19 February 2009 and for now further ordering that verdicts of acquittal be entered on all six counts.

[2]  The evidence at trial can be fairly and relevantly summarised as follows.  The appellant's relationship with the complainant's mother began in about 2001 when the complainant was approximately 12 years old.  The complainant's mother described him as her "ex-fiancé" and that their relationship was a "[f]riendship to begin with and then a long term relationship".  He assumed the role of father to the complainant.  When the complainant was in year 12 and aged 17, the appellant spent some time working and living in Brisbane.  She travelled from the family home in a provincial town in south-east Queensland to stay with the appellant so that she could complete work experience.  They shared a bedroom in a unit in a Brisbane suburb.  The complainant slept on a mattress on the floor next to the appellant's bed.  During this period, the appellant touched her on or about the vaginal area and used a vibrator on her.  Later he had sex with her both at the family home and then at various places in Brisbane, often in the complainant's bedroom with the door open whilst her mother or a relative was in a nearby room.  The complainant was 17 years old when counts 1, 3 and 4 occurred, and 18 when counts 5, 6 and 8 occurred.  The appellant was never observed having sex with the complainant, but a family friend asked the complainant about their relationship.  The complainant then told her mother that the appellant had been having sex with her.  As a result, he was excluded from the household and a complaint was made to police.

[3]  It was accepted by the primary judge that the appellant was not aware he was committing incest.  As the complainant was 17 and 18 years old when the offences occurred, it seems likely that he did not consider he was committing any criminal offences.  There is no doubt that his conduct as found by the jury in their verdicts and by the judge in her sentencing remarks was, however, unquestionably morally reprehensible.  He regarded the complainant as his daughter and she regarded him as her father.  He knew that she was a vulnerable, naïve girl who was desperately seeking a father figure; she had emotional problems; and she had at least told him that she had attempted suicide as a result of bullying at school.  The appellant took her virginity.  In having sex with her, he effectively cut her off from her mother who inevitably felt betrayed.  The appellant was in a position of trust, both to the mother and to the child, and he abused that trust.  He had a great deal of influence over the complainant during the period of the sexual relationship: it seems she did almost anything he asked.  He showed no remorse or insight into the significant detrimental impact of his conduct on her.

[4]  Immoral behaviour does not, however, always equate to criminal behaviour.  In determining whether the appellant committed any act of incest with the complainant, it is necessary to begin with a careful consideration of the terms of s 222 Criminal Code which now provides:

"222 Incest

(1) Any person who—

(a) has carnal knowledge with or of the person’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and

(b) knows that the other person bears that relationship to him or her, or some relationship of that type to him or her;

commits a crime.

Maximum penalty—imprisonment for life.

(2) Any person who attempts to commit the crime of incest is liable to imprisonment for 10 years.

(3) It is immaterial that the act or attempted act of carnal knowledge happened with the consent of either person.

(4) It is a defence to a charge under this section to prove that the accused person was, at the time when the act or attempted act of carnal knowledge happened, acting under the coercion of the other person.

(5) A reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that is a half, adoptive or step relationship.

(6) For subsection (5), a reference to a step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement.

(7) Also, for subsection (5), a reference to a step relationship does not include a step relationship that first arose after the relevant persons became adults.

(8) This section does not apply to carnal knowledge between persons who are lawfully married or entitled to be lawfully married."

[5]  It is now common ground that the appellant and the complainant's mother were in a de facto relationship.  It is clear that if the appellant is criminally liable for his charged sexual acts with the complainant, it is because of the application of the extended definitions of "offspring" and "parent" contained in s 222(5) and (6) to de facto relationships.[1]  If, however, the relationship between the appellant and complainant is one within the terms of s 222(8), the appellant has not committed an offence against s 222.  As the answer is not evidently clear from the terms of s 222, I will consider the legislative history of the section, the relevant explanatory notes and the relevant second reading speeches[2] in the hope of clarifying the legislative intent.[3]

[6]  In 1997 s 222 was significantly amended to take its present form.  Until then, the Criminal Code since its enactment in 1899 had provided for two separate offences of incest: incest by man (s 222) and incest by adult female (s 223).  Originally, the offence of incest by man under s 222 was committed when a person carnally knew a woman or girl who was to his knowledge his daughter or other lineal descendant or his sister.[4]  Consent of the woman or girl was immaterial.  The offence was punishable by life imprisonment and attempted incest by seven years imprisonment.[5]  Originally, the offence of incest by an adult female under s 223 was committed by a woman or girl of or above the age of 18 years who knowingly permitted her father or other lineal ancestor or her brother to have carnal knowledge of her.[6]  It was a defence if the woman or girl acted under the coercion of the offender.  The offence was punishable by three years imprisonment. 

[7]  As the explanatory notes to the Criminal Law Amendment Act 1997 which introduced s 222 in its present form explained, the amendments had the effect of:

"consolidating section 222 (Incest by man) and section 223 (Incest by adult female) into one section.  The penalty will be a maximum of life for incest and 10 years for attempted incest.  This removes the anomaly between the present penalties of life imprisonment in section 222 and 3 years in section 223.  The types of sexual relationships covered by the offence of incest will be widened to include uncles, aunts, nephews, nieces and a limited category of half, step or adoptive relations."

[8]  It seems, at first, curious that the explanatory notes made no reference to the new and radical provision contained in s 222(6).  After all this section, for the first time, widened the traditional categories of relationships to which the offence of incest applied to include de facto step relationships like that between the appellant and complainant.  Nor did the explanatory notes make any reference to the exculpatory provisions of s 222(7) or (8).

[9]  The latter omission is explicable from a review of the parliamentary debate of the Criminal Law Amendment Bill 1997.  When the Bill was first introduced to parliament, the proposed amended s 222 comprised only subss (1) to (6).  The ensuing debate, especially surrounding s 222(6), was vigorous.  It resulted in two amendments to the proposed s 222, first by adding s 222(7), and second by adding s 222(8).  The then Attorney-General, the Honourable Denver Beanland, in proposing to add subs (7), noted that:

"… it relates to minors only.  From listening to the debate, I believe that members are happy for the legislation to cover minors who are involved in incestuous situations, but they do not want the law on step relationships to apply to adults.  Having had a quick discussion about that, I understand that this amendment will overcome that concern. … The amendment clearly spells out that the reference to a step relationship does not include a step relationship that arose after the relevant persons became adults." [7]

[10] Further parliamentary debate ensued.  Mr Foley, the then Shadow Attorney-General, expressed concern that the proposed s 222, even with subs (7) made sexual relations between some people who were lawfully entitled to marry under the Marriage Act 1961 (Cth) a serious criminal offence.  Mr Foley argued that, even if the Marriage Act provided a good defence to a charge under the proposed s 222 once the protagonists were married, it would be a "curious anomaly that such persons would be guilty of incest" if they engaged in sexual relations prior to marriage.  Mr Foley referred to the view put forward in submissions from the Queensland Law Society that in any case the Marriage Act did not appear to afford any defence.[8]

[11] Mr Beanland responded by foreshadowing another amendment to resolve the issue raised by Mr Foley.[9]  Following further debate within the parliament, Mr Beanland moved another amendment to the proposed s 222 by inserting after the newly proposed subs (7), a newly proposed subs (8), stating:

"It is quite clear that the foreshadowed amendment applies to carnal knowledge between persons who are lawfully married or entitled to be lawfully married.  That does not include people who are in a prohibited relationship or who are not lawfully entitled to be married.  … I do not think the amendment excludes all the people we are trying to include at all – far from it.  In fact, the section does not apply to carnal knowledge between persons who are lawfully married or entitled to be lawfully married.  I think that is quite clear and explicit."[10]

[12] This review of the explanatory notes and parliamentary debates relating to s 222(8) is of little assistance in its interpretation.

[13] It is noteworthy that if the charges of incest under s 222 against the appellant are properly brought, Queensland is the only Australian jurisdiction which attaches criminal liability to consensual sexual intercourse between a person and the child of the person's de facto spouse when the child is over 18 years, and only in Victoria and Queensland is such conduct an offence when the child is between 16 and 18 years.[11]  The exculpatory provisions in s 222(7) and (8) are unique to Queensland.

[14] In the present case, whether the appellant is criminally liable for his dishonourable relationship with the vulnerable complainant turns on the terms of s 222(8), and, in particular, on the meaning of "persons … who are lawfully entitled to marry".  There is no evidence in this case that the parties planned to marry.  But the concept of whether the appellant and complainant were "entitled to be lawfully married" does not turn on whether there was any intention or desire on their part to lawfully marry.

[15] Section 51(xxi) Constitution gives the federal parliament the power to make laws with respect to "marriage".  The Marriage Act 1961 (Cth) is the relevant statute to turn to in construing the words "entitled to be lawfully married".  It defines "marriage" as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".[12]  A person is of marriageable age at 18 years.[13]  A person between 16 and 18 years may, however, apply to a judge or a magistrate for an order authorising them to marry a particular person of marriageable age.[14]  The judge or magistrate is required to hold an enquiry into the relevant facts and circumstances and, if satisfied that the person has attained the age of 16 years and the circumstances of the case are so exceptional and unusual as to justify the making of the order, may exercise the judicial discretion to make the order.  Otherwise the judge or a magistrate shall refuse the application.[15]  If such an order is made, the person is deemed to be of marriageable age.  The order ceases to have effect if the marriage does not take place within three months of the order.[16]

[16] Ordinarily, a marriage of a minor cannot be solemnised without either the consent of the minor's parent or guardian;[17] or where the prescribed authority has dispensed with the consent under the Marriage Act;[18] or where the consent is instead given by a judge or magistrate.[19]  Any dispensation of consent by a judge or a magistrate ceases to have effect after three months if the marriage has not taken place.[20]  It is an offence to go through a formal ceremony of marriage with a person who is not of marriageable age.[21]

[17] Part III Marriage Act deals with "Void marriages" and its Div 2 with "Marriages solemnized after the commencement of section 13 of the Marriage Amendment Act 1985".[22]  It sets out the grounds on which such marriages are void, relevantly, if either of the parties is, at the time of the marriage, lawfully married to another person;[23] if the parties are within a prohibited relationship;[24] or if either of the parties is not of marriageable age.[25]  The relationship between the appellant and complainant as de facto stepfather and de facto stepdaughter is not within the defined categories of "prohibited relationship" under the Marriage Act.[26]

[18] It is plain from this discussion of the provisions of the Marriage Act that once the complainant was 18 years old, she and the appellant were both "persons … entitled to be lawfully married" under s 222(8).  For that reason, Ms Bain, who appears for the respondent in this appeal, effectively and rightly conceded at the more recent hearing that the appellant's convictions on counts 5, 6 and 8, which were charged as occurring when the complainant was 18 years old, must be quashed. 

[19] The more difficult question is whether s 222(8) also excluded the application of s 222 to counts 1, 3 and 4 which were committed when the complainant was 17 years old and so in the "twilight zone"; above the age of consent to sexual activity, but still not an adult.  Was she then "entitled to be lawfully married" in the terms of s 222(8)?

[20] As is often the case, the answer to this simple question is not simple.  The term "entitled" is defined in neither the Criminal Code, the Marriage Act nor the ActsInterpretation Act 1954.  Somewhat surprisingly, counsel for the parties were unable to refer the Court to any legal authority as to the meaning of the word "entitled" in any context.  They sensibly submitted that it has its ordinary meaning.  In the Australian Concise Oxford Dictionary the verb "entitle" is defined as "1 a (usu. foll. by to) give (a person etc.) a just claim. b (foll. by to + infin.) give (a person etc.) a right".  The Macquarie Dictionary relevantly gives the following definition: "entitle verb (t) (entitled, entitling) 1. to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim".

[21] I have not found any case directly applicable to the meaning of "entitled" in s 222(8), but I have been referred to a useful decision of this Court: Rankin v AgenBiomedical Ltd.[27] The Court there discussed the meaning of "entitled" in the quite different context of the now repealed O 45 r 1 Supreme Court Rules which relevantly provided:

"When facts arise after the giving of a judgment or making of an order which entitle the person against whom the judgment or order is given or made to be relieved from it … he may apply to the Court or a Judge for a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief …".  (my emphasis)

The question for the Court's determination was whether O 45 r 1 could relieve a party from the consequences of a self-executing order on the basis that events subsequent to the making of the order justified resort to O 45 r 1.  If the word "entitle" in O 45 r 1 connoted only an absolute right, not merely a possibility of applying for relief, the party could not benefit from O 45 r 1.  The Court noted that in KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd[28] McPherson J, (the other members of that Court agreeing) adopted an expansive construction of O 45 r 1 and of the notion of the entitlement it provided; a party could have recourse to O 45 r 1 even where the facts demonstrated there was not an absolute entitlement but merely an entitlement to favourable consideration.[29]  Following KGK, this Court interpreted the word "entitle" in O 45 r 1 as "capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion and claims no absolute right to relief".[30]

[22] The explanatory notes provide no assistance as to whether s 222(8) should exclude the operation of s 222 in the circumstances pertaining in counts 1, 3 and 4 when the 17 year old complainant and the appellant could have lawfully married, but only with an order from a judicial officer.  The relevant parliamentary debate and the ordinary meaning of "entitled to be lawfully married" are capable of supporting either competing argument.  The approach taken by this Court as to the meaning of "entitle" in Agen Biomedical and first alternative Macquarie Dictionary definition ("furnish with grounds for making a claim") tend to support the conclusion that the appellant and complainant were "entitled to be lawfully married" when she was 17 years old at the time of the occurrence of counts 1, 3 and 4.  Applying the ordinary rules of construction, it is not easy to definitively determine whether the parliament, in enacting s 222(5) – (8), was intending to include conduct like the appellant's in counts 1, 3 and 4 in the offence of incest under s 222: cf Scott v Cawsey.[31]  In such circumstances, the principle of construction adopted, effectively as a last resort, in construing a criminal statute creating a serious offence punishable by a lengthy period of imprisonment, is that an ambiguous term should be strictly construed in favour of the person charged: Beckwith v R.[32]  This case is within that unusual category of cases where it is prudent to adopt that principle of construction.  The complainant, at the time of counts 1, 3 and 4, was 17 years old and entitled under the Marriage Act to lawfully marry the appellant after obtaining an order of a judicial officer and with the necessary consent.  She therefore had grounds for laying a claim to be able to lawfully marry.  Although there are competing arguments, I am finally persuaded the better view is that the appellant and the complainant at the times of counts 1, 3 and 4 were "persons … entitled to be lawfully married" under s 222(8).  It follows that s 222 does not apply to the conduct alleged against the appellant in counts 1, 3 and 4.

[23] During the hearing, Ms Bain handed up a supplementary outline of submissions that she stated she was "instructed" to make.  That argument, as I apprehend it, is as follows.  If the de facto partnership between the appellant and the complainant's mother is recognised as a marriage, it would be bigamous for the appellant to enter into a marriage with the complainant.  It follows, Ms Bain submitted, that the complainant and the appellant would not be "entitled to be lawfully married" within the terms of s 222(8).

[24] This argument seems to be inconsistent with the concession made by Ms Bain as to the correctness of orders quashing the convictions on counts 5, 6 and 8.  In any case, the submission seems to be an oxymoron.  The Marriage Act provides that a marriage is void if either of the parties is at the time of the marriage lawfully married: s 23B(1)(a).  How could the words "lawfully married" (my emphasis) in s 23B(1)(a) encompass a de facto marriage which is necessarily one in fact and not in law?

[25] Section 222(6) widens the category of incest to include (subject to s 222(7) and (8)) "a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship".  The term "de facto relationship" is not defined in the Criminal Code.  It is, however, defined in s 36 Acts Interpretation Act 1954 as "the relationship existing between 2 persons as a couple because each is the de facto partner of the other".  The term "de facto partner" is defined in s 32DA Acts Interpretation Act as:

"(1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—

(a)the nature and extent of their common residence;

(b)the length of their relationship;

(c)whether or not a sexual relationship exists or existed;

(d)the degree of financial dependence or interdependence, and  any arrangement for financial support;

(e)their ownership, use and acquisition of property;

(f)the degree of mutual commitment to a shared life, including the care and support of each other;

(g)the care and support of children;

(h)the performance of household tasks;

(i)the reputation and public aspects of their relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

(5) For subsection (1)—

(a)the gender of the persons is not relevant; and

(b)a person is related by family to another person if the person  and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.

(6) In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary."[33]

[26] A de facto relationship under s 222 is therefore plainly very different to the relationship of a marriage and the concept of "lawfully married" in the Marriage Act.

[27] Ms Bain based her argument on the article "Just 'de facto' may carry as much weight under the Family Law Act as 'just married' in relation to property disputes" by solicitor, Adrian Stone.[34]  As the title indicates, the article proposed, at least for some purposes under the Family Law Ac 1975 (Cth), that the term "marriage" may encompass de facto marriages and that de facto marriages may come within the concept of "marriage" in s 51(xxi) of the Constitution.  Ms Bain has supplied seven references to High Court authorities in support of her contention.[35]  She has not articulated the relevance of those references other than to submit that "the High Court has considered s 51(xxi), apparently without conclusion about whether Parliament can determine the meaning of 'marriage' or if 'marriage' has a strict fixed meaning".

[28] In determining the meaning of "lawful marriage" it is not helpful to consider the meaning of marriage under the Family Law Act.  That Act deals primarily with family dispute resolution; divorce; child custody access and maintenance; spousal maintenance; property settlements; and the creation, jurisdiction and administration of the Family Court.  The relevant statute to determine the meaning of "lawful marriage" is the Marriage Act.

[29] It may well be that a future federal parliament under s 51(xxi) Constitution decides to extend the concept of "marriage" from the definition presently contained in the Marriage Act to include a broader range of relationships, some of which are presently known as de facto partnerships, especially those voluntarily entered into for life.  But that does not help Ms Bain's argument.  In that respect, I observe that Ms Bain's contention is not advanced by the evidence at trial which did not suggest that "the long term relationship" between the appellant and the complainant's mother was necessarily a lifelong commitment.  But in any case, the relationship between the appellant and the complainant's mother was not a lawful marriage under either the Marriage Act or for the purposes of s 222(8).  The authorities to which Ms Bain has referred us in making this adventurous contention, neither individually nor collectively support the conclusion that the term "lawfully married" includes a de facto relationship of the type existing between the appellant and the complainant's mother at the time of the commission of the alleged offences.

[30] Whilst all aspects of parliament's intention in enacting s 222(8) are not clearly discernible, it is beyond doubt that parliament was not intending to include de facto partnerships within the concept of lawful marriage.  I am equally confident that the federal parliament in enacting the Marriage Act did not intend the term "marriage" as defined in that Act to encompass a relationship of the kind which existed between the appellant and the complainant's mother. Insofar as parliament's intention in enacting s 222(8) is discernible, it is clear that the twice-used term "lawfully married" refers to marriage as permitted under the Marriage Act.  That Act entitled the complainant and the appellant to lawfully marry once the complainant was 18 years old (counts 5, 6 and 8).  It also entitled them to lawfully marry when she was 17 years old, subject to a favourable exercise of discretion by a judicial officer and with the necessary consent under the Act.  It follows that both when the complainant was 17, as well as when she was 18, they were "persons … lawfully entitled to be married" so that s 222 did not apply to their sexual relationship at the time counts 1, 3-6 and 8 occurred.

[31] For these reasons, I joined in the Court's orders on 19 February 2009 in granting the application for an extension of time, allowing the appeal, and quashing all six convictions.  As the complainant and the appellant were "entitled to be lawfully married" at the time of all the charged offences, the appellant should not have been held criminally responsible under s 222 for the conduct alleged against him: cf Fingleton v R.[36]  No retrial should be ordered on any count.  Instead, a verdict of acquittal on each count should be entered.

[32] I wish to make three further observations.  The first is that, had the appellant had sex with the complainant when she was under 16 years, his conduct would have amounted to incest under s 222.

[33] The second is that the definition of "consent" in the context of rape and sexual assaults was amended and broadened in 2000 to relevantly provide:[37]

"348 Meaning of consent

(1)In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained -

(a) by force; or

(b)by threat or intimidation; or

(c)by fear of bodily harm; or

(d)by exercise of authority;

…"

If the prosecution's case had been that any of these offences were committed without the complainant's consent freely and voluntarily given, the appellant could have been charged with rape.[38]

[34] The third observation is self-evident.  If the legislature intends that s 222 should apply to acts like those of the appellant's in counts 1, 2 and 5, it can amend the section to make this clearer.

[35] FURTHER ORDER:

1.Verdicts of acquittal entered on counts 1, 3, 4, 5, 6 and 8.

[36] MUIR JA: I agree with the reasons of McMurdo P and with the further order proposed by her.  As emerges from her Honour's reasons, whether the appellant committed the offences of which he was convicted depends on the construction of s 222(8) of the Criminal Code 1899 (Qld) and, in particular, on whether he and the complainant were "entitled to be lawfully married" at the time of the alleged offences. 

[37] I think it correct to say that the word "entitled" normally signifies the existence of a legal claim or legal right.  That is, a right to obtain or enforce something, whether by legal process or otherwise, without having to obtain or satisfy conditions or approvals.[39]

[38] Regarding the meaning of "entitled to practise" within the meaning of the Judiciary Act 1903 (Cth), it was remarked in the judgment of the Court in Little v Registrar of the High Court of Australia:[40]

"Its sense is to be derived from the ordinary meaning of the word 'entitle' which is '…to give a rightful claim to anything':  Shorter Oxford English Dictionary.  In that ordinary sense it attaches only to a practitioner who has satisfied all conditions necessary to establish the rightful claim to practise."

[39] However, "entitled", like most words in the English language, has a variety of meanings, depending on the context in which it is used.  The fact that a person cannot exercise a "right" without first obtaining an order of the Court does not mean, necessarily, that no entitlement exists.[41]And an "entitlement" might arise in circumstances in which the vindication of a claim depends on the favourable exercise of a discretion.[42]

[40] An obvious function of s 222(8) is to ensure that other provisions in s 222 are not inconsistent with any laws of the Commonwealth with respect to marriage.  That does not suggest that a narrow approach should be taken to the construction of the provision and it is, after all, a provision in a penal statute.  Also, the provision is to be construed as one which is concerned with the existence of a general condition or state of affairs, namely, whether persons are "lawfully married" or "entitled to be lawfully married".  Plainly, it is not concerned with the observance of technical, procedural or formal requirements which may need to be fulfilled under other legislation before a marriage can be duly solemnized.  For example, it is highly unlikely that the Legislature intended that an entitlement would not exist under subsection (8), unless the conditions for the solemnizing of a marriage prescribed by s 42 of the Marriage Act 1961 (Cth) had been met.  They include the giving of notice in writing of the intended marriage in accordance with the section and production to the authorised celebrant of a birth certificate or an official extract. 

[41] Another requisite of a valid marriage is the consent of the parties to it.[43]  Again, it seems obvious that the subsection is not concerned with whether persons are contemplating marriage or have consented to marriage.  The subsection's concern is with the more general question of a person's status under the laws relating to marriage.

[42] The above discussion shows that "entitled" in subsection (8) is not used in the sense of a right which may be exercised without the need to satisfy any condition or obtain any approval.  It also emerges from the foregoing discussion that there is no particular difficulty in construing "entitled" in subsection (8) as encompassing a right dependent on obtaining an approval under Part II of the Marriage Act 1961.  I am fortified in my conclusion as to the proper construction of subsection (8) by some of the odd consequences which could flow from the more restrictive construction of the provision favoured by the respondent.

[43] ATKINSON J: I agree with the reasons of the President and the further proposed order.  There is only one additional matter to which I wish to advert.  The President has explained in detail the legislative passage of the amendments to s 222 of the Criminal Code.  Apart from the matters referred to in the Parliament, there is yet another reason that explains why subsection (8), which provides a complete answer to the charges of incest in the present case, was necessary.  It ensures that the State law is not arguably inconsistent with Commonwealth law and that no question of constitutional invalidity arises.

[44] Section 109 of the Constitution of the Commonwealth of Australia provides that when a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law should prevail, and the State law should, to the extent of the inconsistency, be invalid.  It is beyond power for a State law to declare illegal an action which is lawful under a law of the Commonwealth made within one of the Commonwealth heads of power.

[45] If Commonwealth legislation, made within power, permits certain activity, then State legislation may not prohibit or criminalise such activity.  An example of the operation of this principle is found in Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151.  A New South Wales Act provided that the Minister could, by order, prohibit women working with certain machinery.  The Minister had made an order prohibiting the employment of women in any factory in any work at or in connection with milling machines unless he had given a written permit.  On the other hand, an award made by the Commonwealth Court of Conciliation and Arbitration permitted the employment of women in the industries and callings covered by the award, which included work at a milling machine, unless such had been declared unsuitable for female employees by a special Board of Reference.  No such declaration had been made.  The award was part of the law of the Commonwealth by virtue of the Commonwealth Conciliation and Arbitration Act 1904.  The order was part of the law of the State by virtue of the Factories and Shops Act 1912 (NSW).  The resulting inconsistency rendered the State law invalid by operation of s 109 of the Constitution, because there was “an express prohibition by the State authority of that which is permitted by the Commonwealth authority”.[44]

[46] The Marriage Act 1961 is a Commonwealth Act made pursuant to the power given to the Commonwealth to legislate with respect to marriage under s 51(xxi) of the Constitution.  For the reasons explained by the President, marriage between the appellant and the complainant would be lawful under Commonwealth law.  Consensual sexual intercourse is a lawful incident of marriage.  Accordingly, the State would not appear to have the power to make consensual sexual intercourse between people who are entitled to be married, unlawful.  If it did so, then the State law would arguably be invalid under s 109 of the Constitution.

[47] If the amendments to s 222 of the Criminal Code had not included subsection (8) then it would have been necessary to have given notice under s 78B of the Judiciary Act 1903 (Cth) because it would have involved a matter arising under the Constitution or involving its interpretation.  That was not necessary in this case as, because of subsection (8), the Queensland statute has not purported to prohibit what the Marriage Act permits so the question of constitutional validity of the Queensland statute does not arise.