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. Continue reading
A majority of the High Court has allowed an appeal against the decision of the Northern Territory Court of Appeal in Attorney-General (NT) v Emmerson. Continue reading
By Laureate Professor Cheryl Saunders AO
Condon v Pompano Pty Ltd  HCA 7 is the latest in a line of cases invoking the Kable principle to challenge atypical judicial processes mandated by State Parliaments for the purposes of crime control. In issue this time was the Criminal Organisation Act 2009 (Qld). The High Court challenge was brought by the Finks Motorcycle Club and Pompano Pty Ltd (said to be linked to the Finks’ Gold Coast ‘chapter’), bodies that the Queensland police claim are involved in organised crime.
In three of the earlier cases, organised crime control laws had been held to be incompatible with the maintenance of the integrity of State courts; a federal constitutional requirement since 1996, when the High Court struck down a statute permitting the NSW Supreme Court to order the continued detention of a particular soon-to-be-released prisoner, Geoffrey Wayne Kable (International Finance Trust Co Ltd v New South Wales Crime Commission  HCA 49; South Australia v Totani  HCA 39; Wainohu v New South Wales  HCA 24).
In another two earlier cases the laws had been construed so as to preserve their validity (Gypsy Jokers Motorcycle Club Inc v Commissioner of Police  HCA 4; K-Generation Pty Ltd v Liquor Licensing Court  HCA 4). The result was a messy jurisprudence, in which different judges relied on different features of the challenged legislation to draw what sometimes appeared to be fine lines between what was acceptable and what was not.
In Pompano a High Court of six Justices unanimously upheld the validity of the Queensland Act, with some important variations in their reasons. The case offers some insights into the significance of procedural fairness as a defining characteristic of a court. For the moment, however, given differences in emphases amongst the six judges, the scope of the Kable principle remains as indeterminate as ever, exacerbating the inevitable difficulty of predicting its application in practice. Continue reading