Members of the Public Law and Policy Research Unit met this week to discuss the High Court’s recent decision in Kuczborski v Queensland [2014] HCA 46. PLPRU Member, Anna Olijnyk, provides an overview of the case and the key issues from the case discussion.

This was a challenge, on Kable grounds, to Queensland’s suite of anti-organised crime legislation. The plaintiff is a member of the Hells Angels Motorcycle Club.

The plaintiff’s challenge was wholly unsuccessful. He lacked standing to challenge some of the laws, and the others were held valid.

Standing

The High Court held that the plaintiff lacked standing to challenge the following laws:
•    The Vicious and Lawless Association Disestablishment Act 2013 (Qld), which imposed mandatory additional penalties of up to 25 years for declared offences committed for the purpose of, or in the course of participating in the affairs of, an association.
•    Amendments to the Criminal Code (Qld) making participation in a criminal organisation an aggravating circumstance attracting a mandatory minimum penalty for certain offences.
•    Amendments to the Bail Act 1980 (Qld) reversing the presumption of bail if the defendant was, or had been, a participant in a criminal organisation.

The plaintiff had not been charged with any offence. Nor did he claim that he intended to commit any offence to which the impugned provisions would apply. The laws attached additional consequences to activities that were already illegal. In the circumstances, the laws had no effect on the plaintiff’s rights or his liberty.

We agreed that this was a sensible approach to standing, and one that accorded with long-standing principles. We queried whether it was necessary for the issue of standing to be covered in depth in all four separate judgments (French CJ; Hayne J; Crennan, Kiefel, Gageler and Keane JJ and Bell J) as the reasoning on the issue was quite similar in all judgments. We found it difficult to reconcile with the High Court’s approach in the recent Williams cases and Pape. In Williams, the High Court seemed to take a more relaxed approach to standing because State Attorneys-General intervened to argue – on the same side as the plaintiff – that the law was invalid, and therefore the Court had the benefit of detailed argument on both sides. Is the implication that the question of standing turns on the Court’s assessment of the quality of argument the plaintiff is likely to present?

New offences in the Criminal Code

The plaintiff did have standing to challenge provisions of the Criminal Code that made it unlawful for participants in criminal organisations to do various things including associating in public, going to certain places and recruiting new participants.

The legislation provided three ways in which an organisation could become a ‘criminal organisation’:
•    First, the trial judge could find that the organisation had a purpose of engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity and that the organisation represented an unacceptable risk to the safety, welfare or order of the community.
•    Secondly, the organisation could be the subject of a declaration by the Supreme Court under the Criminal Organisation Act 2009 (Qld). The grounds for making such a declaration are substantially identical to the criteria for a trial judge finding that an organisation was a criminal organisation: a criminal purpose, and an unacceptable risk to the community.
•    Thirdly, an organisation could be declared a criminal organisation by regulation. Hells Angels had been so declared and it was on this aspect of the legislation that the Kable argument focused.

The legislation provided a defence of establishing that the organisation did not have a purpose of engaging in serious criminal activity.

The majority held these laws valid. They rejected the argument that the provision for the executive to prescribe criminal organisations involved the executive dictating to the court. The court was left with a substantial adjudicative task. If the executive prescribed a criminal organisation, this merely provided a factum to which, in combination with other circumstances, the legislation attached consequences. The judgments contain many statements to the effect that the mere fact that a court is applying legislation that reflects the policy of the executive does not mean the executive is dictating to the court.

Totani v South Australia was distinguished. We found this one of the most problematic aspects of the decision. Various members of the Court seemed to give Totani a very confined operation. French CJ, for example, appeared to treat Totani as a simple rubber-stamping case. Crennan, Kiefel, Gageler and Keane JJ placed emphasis on the fact that the law held invalid in Totani required the court to create new norms of conduct rather than to determine criminal guilt. On our reading of Totani, it was not obvious that either of these matters were crucial to the result. We agreed that Kuczborski is consistent with our understanding of the Kable principle prior to Totani and that the reasoning in Kuczborski is easier to follow than that in Totani. We discussed the possibility that the High Court may be retreating from the expansive approach to the Kable principle in Totani and Wainohu.

Hayne J dissented on this point, holding the laws invalid. His reasoning turned on the fact that, as explained above, there were three limbs of the definition of ‘criminal organisation’.  The first two possibilities involved a court determining that the organisation had a criminal purpose and posed an unacceptable risk to the community. The third involved a largely unreviewable determination by the executive. For Hayne J, the fact that the same consequences could be reached by either an executive or a judicial determination meant that the functions of courts were assimilated with those of the executive. We discussed the consequences of Hayne J’s approach: it would seem that he would have held the law valid if the courts had been excluded from the process altogether.

New offences in the Liquor Act

The final set of laws challenged by Mr Kuczborski were amendments to the Liquor Act making it an offence to wear the insignia of a criminal organisation in licenced premises. ‘Criminal organisation’ in this context meant an organisation declared under regulation. These laws were held valid. They were held merely to be criminal laws of general application that prohibited certain conduct and involved no intrusion on the judicial function.

The Kable principle

We considered what this judgment reveals about the current state of the Kable principle. We noted that the formulation of the principle currently in favour turns on concepts of ‘institutional integrity’ and ‘incompatibility’ with the court’s role as a repository of federal jurisdiction. These concepts are, we thought, conclusory and subjective. They give us few clues about when a law will breach the principle. Nor do the decided cases make things much clearer: we find it difficult to predict when, and why, a law will breach the Kable principle and cases are often distinguished on very narrow grounds.

We recalled the move, in Forge v ASIC, towards a text-based approach to the Kable principle, turning on the substantive meaning of the word ‘court’ in Chapter III of the Constitution. This approach, we thought, gave the Kable doctrine a solid basis and provided a starting point for analysis of the content of the doctrine. Ascertaining the defining characteristics of a ‘court’ is, of course, a complex exercise involving contestible matters of judgement. Yet it had the potential to provide a more conceptually coherent doctrine than the current ‘institutional integrity’ approach.