Kuczborski v Queensland  HCA 46 (14 November 2014)
The High Court has upheld new offence-creating provisions of the Criminal Code Act 1899 (Qld) and new provisions of the Liquor Act 1992 (Qld), introduced as part of a package of legislation intended to deter criminal gangs and criminal organisations, including criminal motor cycle gangs.
In relation to other provisions enacted, the Court found that the plaintiff, a Hells Angel, did not have standing as he had not been charged with a relevant offence and did not contend that he intended or was likely to commit one. Accordingly, his exposure to increased penalties or bail consequences did not constrain his freedom to act.
In 2013, the Queensland government enacted a package of legislation with the avowed objective of discouraging membership of the Hells Angels Motorcycle Club and similar organisations. The plaintiff, a member of the Brisbane Chapter of the Hells Angels Motorcycle Club, challenged the validity of the legislation.
It is convenient to adopt the categorisation of the majority in describing the challenged provisions:
(1) the “more severe penalty provisions”, consisting of:
(a) provisions in the Vicious Lawless Association Disestablishment Act 2013 (Qld) (VLAD Act), which introduced additional penalties for persons convicted of declared offences who are participants in associations which have not been shown not to have a criminal purpose;
(b) new provisions added to the Criminal Code, which increase the penalties for persons convicted of certain offences against the Criminal Code where they are participants in organisations found to be, or declared by the Supreme Court or designated by regulation as, criminal organisations;
(2) the “new offence provisions”, consisting of:
(a) new provisions inserted in the Criminal Code which make it an offence for a participant in a criminal organisation to be knowingly present in a public place with two or more other participants in a criminal organisation, enter prescribed places or attend prescribed events, or recruit participants in a criminal organisation; and
(b) new provisions inserted by the Tattoo Parlours Act 2013 (Qld) in the Liquor Act which make it an offence to remain in or enterlicensed premises wearing or carrying items bearing insignia or markings of such organisations; and
(3) the “Bail Act provisions”, consisting of amendments to the Bail Act 1980 (Qld) which impose constraints on the grant of bail to persons in such organisations.
The plaintiff sought declarations the impugned provisions were invalid on the basis that:
(a) the more severe penalty provisions and the Bail Act provisions were contrary to fundamental notions of equal justice, as they require more severe treatment for certain offenders due to their lawful choice of associates rather than by their personal and individual culpability for the offence; and
(b) all of the impugned provisions were incompatible with the institutional integrity of the Supreme Court of Queensland contrary to the principles derived from Kable v Director of Public Prosecutions (1996) 189 CLR 51 because they impermissibly enlisted the courts to implement the policy of the executive and legislature to destroy associations which were not directly made unlawful by the challenged provisions.
Queensland contested the plaintiff’s standing to challenge the provisions as he had not been charged with any relevant offence.
The Court unanimously found that the plaintiff did not have standing to challenge the more severe penalty provisions and the Bail Act provisions. The majority rejected the plaintiff’s challenge to the validity of the new offence provisions, finding that the new provisions do not require a court to perform any function other than a characteristically judicial function.
The plaintiff argued that, because he is a participant in the affairs of a “relevant association” for the purposes of the VLAD Act, he has a real interest in the subject matter which exceeds that of a member of the general public. Chief Justice French accepted that his membership of the Hells Angels puts him at greater risk of exposure to a significant additional penalty if he were to be charged with a declared offence. But whether the additional penalty applies to him depends on him being charged with a declared offence. He had not been accused of or charged with such an offence and did not contend that he intended or was likely to commit such an offence. Nor did he challenge the existing laws creating the declared offences. Even if the impugned provisions were invalid, the plaintiff could not lawfully engage in the conduct the subject of those provisions. Accordingly, his freedom to act was not constrained by the greater penalties and he did not have standing to challenge them.
The same analysis was applied by the Court to find that the plaintiff did not have standing to challenge the more severe penalty provisions in the Criminal Code and the Bail Act provisions.
That the plaintiff’s exposure to an additional risk of a penalty should give him standing was also, in Chief Justice French’s view, “unattractive in terms of public policy” as it was a risk of him being charged with, and convicted of, a declared offence, which could arise in a variety of factual circumstances: at .
Justice Bell held that the relief sought was hypothetical and that the plaintiff’s claims did not give rise to a “matter” within the meaning of section 76(i) of the Constitution or section 30(a) of the Judiciary Act 1903 (Cth).
Justice Hayne found that it was enough to conclude that the plaintiff’s challenge to the more severe penalty provisions and the Bail Act provisions failed either for want of standing, or because it gave rise to hypothetical questions which meant there was no “matter”, or because there was no standing and no matter. In his Honour’s view, it was not necessary to decide which of these three reasons was the correct one.
It was not in dispute that the plaintiff, as a member of a declared criminal organisation, had standing to challenge the validity of the new offence provisions. Each of those provisions “prohibits what would otherwise be lawful conduct of a kind in which the plaintiff wishes to engage”: at .
New offence creating provisions upheld
Although arguments in relation to an implied freedom of association and the implied freedom of political communication were raised at a directions hearing on 27 June 2014, they were not relied on by the plaintiff in these proceedings.
The plaintiff instead contended that the courts have been enlisted to give effect to Parliament’s intention to outlaw or disestablish criminal organisations. The plaintiff argued the laws are analogous to the law challenged in South Australia v Totani (2010) 242 CLR 1, which required the Magistrates Court, on application by the Commissioner of Police, to make a judicial control order on terms specified in the legislation if it was satisfied that the individual the subject of the application was a member of a declared criminal organisation. This was found to impermissibly create new norms of conduct “the content of which was determined by the executive and legislature and which restricted the liberty of the subject (over and above the norms binding the public under the general law), without any inquiry by the Court into past or threatened contraventions by the individual of any existing legal norm”: at .
The majority found that the new norms of conduct created by the impugned provisions in the Criminal Code are created by the legislature “anterior to the performance of the judicial function”: at . The impugned provisions “do not require a court to give effect to an executive or legislative decision to subject a given individual to new norms of conduct, much less that it should do so independently of the contravention of existing norms”: at . The new laws do not authorise or require a court to perform any function other than a characteristically judicial function.
The majority also found that the new offence creating provisions did not purport to “cloak the work of the legislature or executive in the neutral colours of judicial action”: at . On the contrary, they said, “it is abundantly clear that the responsibility for any perceived harshness or undue encroachment on the liberty of the subject by these laws lies entirely with the political branches of government”: at .
Justice Hayne, in dissent, found that the new offence creating provisions in the Criminal Code impermissibly afforded a legislative or regulatory determination of what is a criminal organisation the same legal significance as a judicial determination. In his view, “by assimilating the two different kinds of judgment, each is cloaked in the dress of the other”: at . And the availability of a defence did not resolve the problem.
This case has important implications for future challenges to legislation that imposes consequences on existing offences. According to Chief Justice French, a plaintiff “could hardly expect to be heard by this Court on the basis that he intended to contravene” an existing law (at ). So unless the plaintiff has actually contravened a law, or seeks to challenge the existing offences, it may be difficult to establish standing to challenge newly imposed consequences.
While the challenge to the impugned provisions was not ultimately successful, it did provide the Court with an opportunity to comment on the operation and language of the legislation. The majority observed that the language of the provisions was “apt to create confusion as to their operation” and, in particular, that the reference to a “criminal organisation” is “apt to mislead a casual reader as to the effect of the laws”: at . They commented further that the new offence provisions in the Criminal Code were “capable of having a wide operation which might be thought to be unduly harsh”: at . Chief Justice French commented that the persons designated by the VLAD Act as “vicious lawless associates” may include persons who would not “attract the epithets ‘vicious’ and ‘lawless’ in ordinary parlance”: at . Likewise, the class of declared offences includes offences which may not, according to the facts of a particular case, “be described as ‘vicious’”: at . Justice Hayne criticised the lack of consistent terms and definitions to identify the individuals and groups at which the package of legislation was directed. In his view, this could “only create unnecessary difficulty and complexity in the administration of the criminal law”: at .
The full text of the decision can be found here.
Emma Newnham is a solicitor at King & Wood Mallesons on secondment with the Human Rights Law Centre.