High Court dismisses VLAD challenge
On 14 November 2014, the High Court handed down its decision in Kuczborski v Queensland  HCA 46, dismissing a constitutional challenge to the Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) and other Queensland legislation introduced in 2013 and aimed at criminal gangs, particularly outlaw motorcycle gangs.
The challenge was brought by Stefan Kuczborski, who is a member of the Hell’s Angels Motorcycle Club, a declared ‘criminal organisation’ for the purposes of the Criminal Code Act 1899.
Mr Kuczborski sought a declaration that the impugned legislation was invalid for infringing the principle indentified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
The Kable principle is concerned with preserving the integrity of the judicial function. It invalidates State legislation that enlists the courts to implement what are in truth legislative or executive decisions, or requires the courts to depart, to a significant degree, from the processes that characterise the exercise of judicial power.
The impugned provisions
The impugned provisions fell into three categories: new offence provisions, sentencing provisions, and bail provisions.
The new offence provisions included provisions in the Criminal Code and the Liquor Act 1992. The Criminal Code provisions (ss 60A--60C) prohibit participants in ‘criminal organisations’ from:
- being knowingly present in a public place in groups of three or more
- attending ‘prescribed places’ and ‘prescribed events’
- recruiting new participants to the criminal organisation.
The remaining new offence provisions, which are in the Liquor Act, proscribe the wearing or carrying of insignia of a declared ‘criminal organisation’ in licensed premises.
The sentencing provisions included the VLAD Act, which mandates additional punishment where a person commits an existing offence for the purposes of, or in the course of participating in, an association that has a criminal purpose. The remaining sentencing provisions are in the Criminal Code and attach additional punishment to particular existing offences where the person is a participant in a ‘criminal organisation’.
The bail provisions effect a reversal of the presumption in favour of bail where a person is alleged to be, or to have been, a participant in a ‘criminal organisation’ as defined in the Criminal Code.
The High Court unanimously accepted the State’s submission that Mr Kuczborski did not have standing to challenge the sentencing or bail provisions as they did not affect Mr Kuczborski’s rights, liabilities, duties and obligations.
The Court noted the sentencing provisions merely increased the punishment applicable to existing valid offence provisions and that Mr Kuczborski did not challenge the validity of those existing offence provisions.
Mr Kuczborski’s standing to challenge the new offence provisions was not in issue, as the State had not contended that he lacked such standing. The Court, by majority (Hayne J dissenting), accepted the State’s submission that the new offence provisions did not offend the Kable principle. In a joint judgment, Crennan, Kiefel, Gageler and Keane JJ (with whom French CJ and Bell J substantially agreed) held that the stipulation of an element of an offence by the executive or parliament (that is, the declaration of an entity as a ‘criminal organisation’) did not infringe the judicial function of adjudging criminal guilt. In addition, the new offence provisions did not require the judiciary to give effect to a decision of the executive or the legislature, nor otherwise undermine the legitimacy of the judiciary.
Justice Hayne (dissenting) considered that the new offence provisions in the Criminal Code infringed the Kable principle as a result of the definition of ‘criminal organisation’ under the Criminal Code. Justice Hayne viewed the definition of ‘criminal organisation’ as requiring courts to treat a judgment about the status of an organisation made by the judiciary as equivalent to that made by the legislature or the executive, and that this infringed the Kable principle.
The Court unanimously upheld the validity of the new Liquor Act offence provisions and upheld by a majority the validity of the new offence provisions in the Criminal Code. The Court also rejected the plaintiff’s attempt to challenge the constitutional validity of provisions (the sentencing and bail provisions) that did not affect his rights, liabilities, duties or obligations.
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Published: 18 December 2014
Author: Felicity Nagorcka