Last week, the High Court held two directions hearings in Kuczborski v The State of Queensland, the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament in the early hours of 16th October last year as a response to a Gold Coast ‘brawl’ nineteen days earlier. In last Monday’s hearing, Keane J revealed that the High Court hoped to schedule the full hearing in Brisbane in the first week of September. Queensland’s new Solicitor-General, noting that the case would require a day of arguments each by the challenger and Queensland and may attract interventions from many other Attorneys-General, suggested that the hearing would take ‘at least three days’. A four-day hearing would be the second one this year. As I noted last month on the chaplaincy hearing’s fourth day, the two previous four-day matters in the High Court were in 2009 and 2006.
The length of this matter may be less to do with its significance or controversy, and rather is likely due to the number of laws being challenged and the number of grounds. The three Queensland statutes cover a wide array of mandatory sentences, police powers, restrictions on public behaviour, licensing restrictions and clothing restrictions, in many instances interacting with regulations that deem a list of 24 bikie gangs to be ‘criminal organisations’. As revealed in Friday’s hearing before French CJ, the constitutional questions that arise are:
- Whether an implied freedom of association exists and if so, its application to each of the impugned provisions.
- The implied freedom of political communication.
- The principles in Kable v Director of Public Prosecutions (NSW) subsequent relevant decisions.
- Inconsistency with the Trade Marks Act 1995 (Cth) and/or the Copyright Act 1968 (Cth).
The case also raises issues of standing and ‘hypothetical’ challenges, because the plaintiff, Hell’s Angel member Stefan Kuczborski, has not been charged with any offences.
As occurred in the lead-up to last year’s same-sex marriage case, a challenge for the High Court is to reduce the need to resolve controversial factual questions (such as the accuracy of intelligence reports about the role of bikie gangs in global organised crime, which Queensland suggests may support the laws against challenges based on freedom of communication.) In Monday’s hearing, Keane J, concerned that the case may ‘continue to wallow’ and perhaps jeopardise the planned September hearing date, threatened to state the reserved questions himself. The parties agreed to talk further and returned that afternoon with draft questions, but a further hearing before French CJ was still required that Friday morning, which clashed with the valedictory for outgoing Queensland Chief Justice Paul de Jersey. It may well be that the controversy surrounding the position of Queensland’s Chief Justice made that event unmissable. For whatever reason, the bikies’ QC, Ken Fleming, arrived late to court for the first time ‘in 38 years’, for which he apologised ‘profusely’ to French CJ.