Kuczborski v Queensland

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.

High Court Judgment [2014] HCA 46  14 November 2014
Result Laws not invalid
High Court Documents Kuczborski
Full Court Hearing [2014] HCATrans 188  3 September 2014
[2014] HCATrans 187 2 September 2014
Directions Hearings [2014] HCATrans 151 22 July 2014
[2014] HCATrans 146  27 June 2014
[2014] HCATrans 143 23 June 2014
[2014] HCATrans 116 2 June 2014
[2014] HCATrans 97 12 May 2014

6 thoughts on “Kuczborski v Queensland

  1. Hello. Lazy person from Monash University here. ie .someone who hasn’t read the case just yet. *ahem*

    So, to be clear, this means that this case leaves us none the wiser on VLAD. As he lacked standing, we know nothing more than we knew before about its constitutionality. Correct?

  2. Doesn’t this case weaken access to justice in Australia? To apply such a strict test for standing with a putative requirement to have your rights, duties or obligations affected (i.e be charged or convicted of a relevant offence) seems inconsistent with the public’s autonomy to challenge the validity of laws it perceives unjust or unconstitutional. In my view, if you have the time and resources to bring a High Court challenge, and there is a reasonable prospect the laws will affect you or a class of persons you represent (such as Kuczborski) then it seems unduly restrictive to dismiss an appeal based on standing alone. There was clearly a question of public importance in this case, which the High Court acknowledged by granting special leave (mistakenly perhaps?) and by engaging with the Kable issue. To my mind it follows that where these types of cases are commenced, the test of standing should not be applied in an ununduly narrow or restrictive way as to do so risks infringing the public’s democratic right to participate in the judicial process. I would be interested in the author’s thoughts?

    • While not the author, I agree with you. Whilst I understand the rationale for the Courts not engaging in hypotheticals of the kind that the ATO does when it issues private rulings, I would have thought that for criminal law (and especially criminal law which discriminates against particular groups, even bikie gangs) everyone should have sufficient standing to know in advance whether an act is criminal or not if they’re prepared to actually apply to the High Court about it. Otherwise the legislature can pass unconstitutional criminal laws and the only way for people to gain standing to challenge them is to commit an apparent crime, then hope the Court is on their side, which is hardly ideal. I suspect that in a more clear-cut case of legislative overreach the standing issue may be determined differently in the interests of justice.

      As an aside, I greatly approved of the comment by French CJ “The term “vicious lawless association”, which appears in the title to the VLAD Act, is not defined and appears nowhere in the body of the Act. It is a piece of rhetoric which is at best meaningless and at worst misleads as to the scope and substance of the law.”.

      Propagandizing in the titles and language of Acts is an annoying Americanism (e.g. the PATRIOT Act) which has been creeping into our statute books over the past 15 years or so, and the VLAD Act is a particularly ham-fisted example. It’s not a good trend.

  3. I also have concerns about the standing ruling. However, Arky, the Court did rule on the constitutionality on all the criminal offences challenged by Kuczborski: the bans on public gatherings, particular places, recruiting and wearing club badges/colours in licensed premises. So, everyone now has notice that doing those things is illegal (assuming they aren’t invalid on other grounds not argued in this case.)

    What the court didn’t rule on was the validity of a reverse bail onus for participants in criminal organisations, and the validity of aggravated sentencing rules for those participants and for people caught by the VLAD laws. The Court will say that those rules only apply to people who commit offences under provisions that are themselves valid, so there’s no need to rule on their validity now.

    For what it’s worth, I agree with the Court’s standing ruling on the aggravated sentencing rules. But I don’t agree on the bail one. The majority said, of Kuczborski: “It cannot be assumed that he will commit an offence, and so become an applicant for bail.” But bail isn’t for people who commit crimes, but rather for people who are charged with committing crimes. The charging decision is one for prosectors, not regular people like Kuczborski. So, Kuczborski should not have to wait until he is charged (and detained on remand) before he can bring that constitutional challenge.

  4. If another case went to the HC with a similar action what is the chance of someone succeeding on arguing that the VLAD Act is invalid on the ground that it infringes the principle in Kable v Director of Public Prosecutions (NSW)? And why?

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