Last Friday, the High Court handed down its decision in a constitutional challenge to Queensland’s controversial suite of anti-bikie laws. This decision is as interesting for what it does not decide as for what it does.
Stefan Kuczborski, a Hells Angel, argued that the laws infringe the independence and integrity of Queensland’s courts and therefore violate the Australian Constitution. But, in a 6:1 decision, the High Court upheld the validity of two offences created by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld).
However, all seven justices refused to consider the validity of the Vicious Lawless Association Disestablishment Act 2013 (also known as the “VLAD” Act) or certain amendments to the Criminal Code and the Bail Act. This leaves open the possibility that these latter schemes violate the Constitution.
New offences upheld
The High Court upheld two offences created by the Disruption Act. The first offence is committed when three or more “participants” in a “declared criminal organisation” meet in public. It attracts a mandatory minimum sentence of six months imprisonment.
To date, Queensland’s attorney-general, Jarrod Bleijie, has declared 26 criminal organisations, including the Hells Angels. A participant in a criminal organisation is identified as someone who in any way asserts or seeks membership of the organisation – for example, by wearing the group’s logo. Thus, if Kuzcborski met two people in public who were wearing Hells Angels jackets or badges, that meeting alone could send each of them to jail for a mandatory minimum period of six months.
In order to defend the charge, the accused may prove that the declared organisation does not have a criminal purpose.
In a joint judgment, High Court justices Crennan, Kiefel, Gageler and Keane acknowledged that:
… the possible reach of these laws is very wide, and even their operation may be excessive and harsh.
However, the justices emphasised that the role of the High Court is not “to pass judgement on the political wisdom of the impugned laws”. They observed that:
… to demonstrate that a law may lead to harsh outcomes, even disproportionately harsh outcomes, is not, of itself, to demonstrate constitutional invalidity.
The justices recognised that the constitutional question was not whether the laws were good or bad, or even whether they disproportionately inhibit rights and liberties. The constitutional question was limited to the impact of the laws on judicial independence.
For a majority of the High Court, the process that a Queensland court would engage in when applying the Disruption Act was the usual process of considering evidence and hearing submissions in order to reach an independent determination. The availability of a defence underscored that the Queensland court would be able to reconsider the attorney-general’s classification of a particular organisation as “criminal”.
The majority decision employed similar reasoning to uphold new offences created by the Tattoo Parlours Act 2013. These involve the carrying or display of certain symbols of membership of “declared criminal organisations”.
Justice Hayne dissented. For him, the “vice in the provisions” arose from the attorney-general’s determination of which organisations are “criminal organisations”. Hayne interpreted the provisions uniquely, reasoning that they require a court to give the attorney-general’s “opaque, forensically untested and effectively untestable” decision to declare a criminal organisation the same legal effect as a similar judicial decision. This amounted to an “assimilation” of two distinct kinds of power (judicial and executive) exercised in very different ways.
Thus, for Justice Hayne, the provisions violated the constitutional separation of powers. He was not convinced that the available defence was effective or could remedy this constitutional invalidity.
Some aspects could be invalid
Kuczborski challenged two further aspects of the anti-bikie laws. First, he challenged amendments to the Bail Act that reverse the presumption that bail should be granted in matters concerning “participants in a criminal organisation”.
Kuczborski also challenged the VLAD Act and similar amendments to the Criminal Code, which impose onerous mandatory prison sentences on persons who commit certain offences in criminal groups or who are participants in a criminal organisation.
Generally, some specific interest is required in order to gain standing to challenge a law in the High Court. Although Kuczborski admitted to being a “participant in a criminal organisation” (the Hells Angels), he had not been charged with a relevant offence or said that he intended to commit such an offence.
These particular provisions had no more immediate bearing on Kuzcborski’s rights or liberties than on any other Queenslander’s. As a result, the High Court found that it was unable to hear this aspect of the challenge. Therefore, the High Court simply did not consider the validity of these provisions.
This case was not only fought between Kuczborski and the state of Queensland. The Commonwealth, New South Wales, the Northern Territory, South Australia, Victoria and Western Australia all intervened to support the validity of the laws.
Almost immediately after the decision was handed down, jurisdictions such as South Australia and the Northern Territory indicated they would consider following Queensland’s lead and enact similar laws.
In a recent study conducted by UNSW law professor George Williams and myself, we observed the trend of organised crime measures migrating across state jurisdictions. This can lead to a process of normalisation: extreme measures become the norm, pushing governments to reach for new extremes in an effort to “crack down” and look “tough on crime”. Concerns of effectiveness and personal liberty can be sidelined as governments focus on winning the “war on bikies”.
Recent history suggests that the High Court’s decision may facilitate the spread of these kinds of “guilt by association” schemes across Australia, and even lead to more extreme laws.
The laws may be constitutional, but that does not mean they should be adopted across Australia. The Disruption Act in particular has been controversial in Queensland. Its effectiveness is questionable and, as the High Court recognised, its reach extends well beyond the targeted bikie groups and has the capacity to severely curtail individual freedoms.
Simply because the High Court upheld the laws in keeping with judicial independence does not mean that the laws are necessary, effective or in line with vaguer constitutional ideals such as personal liberty, freedom of movement and association, or equality before the law.
As for the VLAD Act and amendments to the Criminal Code and Bail Act, this decision gives no indication of their potential validity. If another jurisdiction adopts these laws, that government will face the prospect of another constitutional challenge, most likely brought by someone with clear standing.
It is disappointing that days of argument in the High Court failed to result in a decision on the validity of all the challenged provisions. For lawyers, this case is a warning to take issues of standing seriously before launching an action. For the community, it demonstrates the limited scope and incremental pace of constitutional litigation.
If Australians seek to have their rights and liberties comprehensively protected, they may be better to pursue political action. Crucially, they need to ensure that such laws are comprehensively reviewed and carefully considered at the time of their enactment.