Constitutional Challenge to QLD Bikie Laws in High Court
Monday 5 May 2014 @ 10.13 a.m. | Crime
Hells Angels member Stefan Kuczborski, the public face of a test case against the QLD anti-association and anti-bikie laws, lodged a High Court application in March 2014 challenging the constitutional validity of “anti-bikie” legislation enacted in Queensland last October.
Background to the Case
Introduced by the State’s Liberal National Party government with the bipartisan support of the Labor opposition, the legislation is the latest in a set of laws passed by state and federal governments since 2001 that have caused controversy because critics feel that they erode rights, including free speech, freedom of association and the right to remain silent.
Under the Vicious Lawless Association Disestablishment Act (Act No 47 of 2013 in QLD), anyone convicted of committing a declared serious offence while a “participant” in an association (which includes taking part in one event), will be found to be a “vicious lawless associate”—unless they can prove that the association does not have a purpose of “engaging in, or conspiring to engage in, declared offences.”
Such “associates” face a mandatory 15-year jail term, on top of any other sentence. Association office bearers face an additional mandatory 10 years’ imprisonment. Parole will also be denied, unless a prisoner turns state informer. Before being convicted, the normal presumption in favour of bail is also reversed. In summary, an office bearer of an “association”—otherwise facing, for example, a 3-year sentence for an offence—can be denied bail and then imprisoned without parole for 28 years.
Introduced alongside this Act was the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (No 45 of 2013 in QLD) and the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (No 64 of 2013 in QLD) that created a mechanism to prosecute individuals for the “crime” of meeting in public with others. The Acts provide that any person who is a “participant” in a “criminal organisation” and is “knowingly present” in a “public place” with 2 or more other such participants commits an offence. The minimum penalty is 6 months imprisonment. The maximum is 3 years.
Current Update
Kuczborski’s written submissions have not yet been published on the web site of the High Court of Australia but it seems that his legal challenge will contain at least two strands. Both reflect the fact that the Australian constitution contains almost no specific protections of fundamental democratic rights, which, unlike England and the USA, that have an explicit Bill of Rights, have been read into the Constitution by successive generations of judges in the High Court.
Firstly, Kuczborski’s lawyers will argue that the Vicious Lawless Association Disestablishment Act (Act No 47 of 2013 in QLD) breaches the constitutional doctrine of the “separation of powers.” This aspect of the challenge is likely to centre on the objection that laws that compel judges to impose mandatory sentences could undermine the independence of the courts.
Secondly, Kuczborski’s case will also apparently seek to overturn the anti-association provisions in the criminal disruption legislation. According to a joint media release by law firm Irish Bentley Lawyers and the United Motorcycle Council (Qld) last month, Kuczborski’s lawyers will argue that the legislation breaches the Australian constitution by preventing people from exercising their right to meet for political reasons.
The Queensland Government has promised a review of the laws in three years time, but for now Mr Bleijie remains committed:
"If the laws are challenged and elements are held invalid, then the Government will of course go back to the drawing board...However, we're not going to give up on behalf of Queenslanders to make sure that we provide the safest streets we can."
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