Today’s judgment in Kuczborski v Queensland dismissed a challenge to a package of laws passed over a year ago as the Queensland government’s response to a ‘brawl’ between two motorcycle gangs in the Gold Coast suburb of Broadbeach. The case definitively resolves (by a solid 6-1 majority) that a key part of the Queensland scheme (borrowed from a narrower regime in NSW) that subjects participants in (to date, 26) ‘declared’ criminal organisations to criminal laws limiting their public behaviour (including bans on public gatherings of participants, bans from particular addresses; and barring everyone from licensed premises if they are wearing particular clothes or patches) leaves Queensland’s courts’ ‘integrity’ intact.

However, the case does not resolve a number of other issues about the Queensland laws:

• First, whether the same bans are invalid on different constitutional grounds, for example, freedom of political expression. (Kuczborski’s challenge originally included those grounds, but he dropped them before the hearing.)
• Second, whether other laws that Kuczborski challenged, notably ones making existing criminal laws harsher through aggravated sentences and bail restrictions imposed on participants in criminal organisations, and the infamous VLAD law imposing crushing sentences on anyone who commits an offence ‘in the course of participating in the affairs of’ any organisation, are valid. (The High Court unanimously held that Kuczborski couldn’t challenge those laws because he had not committed, or been accused of committing, any crime covered by those laws.)
• Third, whether other parts of the Queensland scheme (notably toughened legal powers applicable only to participants in criminal organisations, as well as constraints on licensing in various industries) are valid. (Kuczborski either never challenged those laws or dropped the challenge before the hearing.)

All of these issues may yet return to the High Court, though most would have to be raised by someone who is already facing criminal charges. However, the majority’s strong rejection of the challenge to the public behaviour laws may dampen enthusiasm for bringing such challenges (and they may also be less politically appealing.)

The future of the Queensland laws still depends on two non-constitutional processes. First, in the course of upholding the public behaviour laws, the majority pointedly noted that people who are subject to them may readily challenge the regulations declaring that a particular organisation is ‘criminal’, either through specific defences built into some of the laws or (perhaps) by a challenge to the regulations themselves. Second, although the majority noted that ‘it is not part of this Court’s function to pass judgment on the political wisdom of the impugned laws’, they nevertheless observed that ‘the language in which these provisions are expressed is apt to create confusion as to their operation’ and that ‘ these provisions are capable of having a wide operation which might be thought to be unduly harsh’. These sentiments may perhaps influence whether or not they are reformed by the Queensland parliament and are adopted elsewhere in Australia.