Jeremy Gans, ‘News: Qld Bikie Laws Challenge Set for Lengthy Hearing in September’ (30 June 2014).

The High Court has decided a special case on the constitutional validity of Queensland’s Vicious Lawless Association Disestablishment Act 2013 (Qld) and related provisions under various other law enforcement statutes dealing with restrictions on public association, licensing and clothing aimed at motorcycle clubs. As the applicant had not been charged with any offences under the challenged legislation, the case also raised questions about standing to bring ‘hypothetical’ challenges. The original challenge included contentions that the laws contravened various constitutional protections, including the implied freedom of political communication, an implied freedom of association, the Kable principle, and that they are inconsistent with the Trade Marks Act 1995 (Cth) and the Copyright Act 1968 (Cth).

Only the Kable challenge and standing issues were pressed in proceedings before the High Court. That challenge related to ss 60A, 60B and 60C of the Criminal Code (Qld), which makes it an offence for a  ‘participant in a criminal organisation’ to attend public meetings or prescribed venues or events, or recruit or attempt to recruit a new member, and to ss 173EB, 173EC and 173ED of the Liquor Act 1992 (Qld), which prohibits a licensee from knowingly allowing a person wearing insignia or carrying items associated with motorocycle clubs to enter onto licensed premises, makes it an offence to wear or carry those items on a licensed premises or to refuse to leave after being asked by the licensee.

The Court unanimously held that the plaintiff did not have standing to challenge the validity of the VLAD Act and a number of provisions of the Bail Act 1980 (Qld) and the Criminal Code (Qld) (besides ss 60A, 60B and 60C). The joint judgment (Crennan, Kiefel, Gageler and Keane JJ) held that he had no sufficient interest in having his legal rights clarified by a declaration (at [176]). The laws did not criminalise his relationship with other members of the motorcycle club, he has not been charged with any offences under them, and does not intend to contravene them (at [181]). Any general objection to their aim of discouraging membership of motorcycle clubs or a sense of grievance at the injustice of them is not sufficient for standing ([182]–[185]): ‘His liberty and other rights, duties, liabilities and obligations remain unaffected by the enactment of these provisions; and his legal position would not be materially advantaged if his challenge were to succeed’. French CJ likewise held that the plaintiff lacked standing on the basis that his position under the VLAD Act is the same as that of any member of the public, and while the likelihood that he would be charged under these provisions might be higher than the average member of the public, he still has not yet been charged (see [19], [28]–[30] and [34]). Bell J held that the plaintiff did not have standing in this aspect of the challenge because it was a hypothetical question that did not meet the ‘matter’ requirement in s 76(i) of the Australian Constitution and s 30(a) of the Judiciary Act 1903 (Cth): [277]–[285]. Hayne J also held that the challenged failed for either lack of standing or because it was a hypothetical challenge outside the ‘matter’ requirement, or both, but noted that it was unnecessary to attribute precisely of these combinations applied: [100].

By majority, the Court held that the Kable challenge to the validity of provisions in the Criminal Code (Qld) and Liquor Act 1992 (Qld) failed (Hayne J dissenting). As articulated in Attorney-General (NT) v Emmerson [2014] HCA 13, the Kable principle holds that

because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.

The joint judgment noted that the plaintiff’s submissions on the novelty and breadth of the Criminal Code provisions (discussed at [206]–[216]) did not connect with the requirements of the Kable principle: [217]. The joint judgment rejected the plaintiff’s argument, relying on South Australian v Totani [2010] HCA 39, that the laws ‘enlisted’ judicial power to give effect to Parliament’s intention to outlaw or disestablish the organisations: unlike in Totani, these provisions did not require a court to lay down any new norm of conduct or give effect to an executive or legislative decision, but, rather, simply require ordinary exercises of judicial power: [225]–[227]. Nor did the laws ‘cloak the work of the legislature or executive in the neutral colours of judicial action’: it was clear that responsibility for possible harshness lay with the parliament, and that the only judicial activity involved is the ordinary process of a criminal trial: [228]–[231]. Finally, the joint judgment rejected the argument that members of motorcycle clubs are branded ‘criminal organisations’ without due process of law: the executive power to declare an association a ‘criminal organisation’ does not decide or punish the criminal guilt of any person — that remains a matter for later criminal proceedings, where the declaration of association forms only one part of the overall offence, and in which each element must be proven in the ordinary way: [232]–[235]. As to the provisions of the Liquor Act, the joint judgment held that they were laws of general application, are not novel, and do not intrude on judicial power: [254]–[255]. French CJ and Bell J concurred in these conclusions: see at [39]–[47] and [295]ff, respectively.

Hayne J, in dissent, held that the scheme was invalid because the determination of what a ‘criminal organisation’ was by the legislature or executive — a ‘necessarily opaque, forensically untested and effectively untestable conclusion’ — had the same legal significance as a judicial determination of that question: [115]. Hayne J accepted the ‘cloaking’ metaphor as apt not because courts were required to implement the executive or legislative determination, but because ‘by assimilating the two different kinds of judgment, each is cloaked in the dress of the other’: [117]. The availability of defences, according to Hayne J, did not remove this problem but rather make it more apparent: [118]ff. This reasoning did not apply to the Liquor Act provisions because those laws did not require a court to make any judgment about what a ‘criminal organisation’ is.