Guest post written by Dr. Binoy Kampmark who was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures in law and politics at RMIT University, Melbourne. Email: bkampmark@gmail.com
The so called Queensland Bikie Laws were introduced in September 2013, when Bandido motorcycle gang members on the Gold Coast broke out into a public brawl. With the drafters seeking some rhetorical punch, the suite of laws became known as the Vicious Lawless Association Disestablishment laws, known as VLAD. There was always going to be some doubt about the legality of such laws, given an inconsistent train of jurisprudence on the subject.[1] The issue came up for debate in the recently concluded case of Kuczborski v Queensland [2014] HCA 46.[2] The decision’s implications are ominous.
The challenge was mounted by Stefan Kuczborski of the United Motorcycle Council (UMC), on behalf of 17 Queensland clubs. The parties were attempting to overturn the VLAD laws citing three grounds: that the legislative scheme, in targeting the 26 outlaw motorcycle clubs, constituted an attack on freedom of association and the integrity of the Queensland court system.
Of particular concern were the insertions into the Criminal Code by the Tattoo Parlours Act 2013 (Qld), covering participants in a “criminal organisation”, and those wearing symbols of membership of a “declared criminal organisation”. Furthermore, the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld), set out mandatory minimum penalties while increasing the maximum penalties across a range of existing offences for individuals proven to be a “participant in the affairs of an association”.
The Queensland government, in response, cited the safety of the community as paramount, and had the support of the attorney-generals in five states, the territories and the Commonwealth. In essence, they need not have bothered. The High Court, by majority, ruled against the plaintiff, Kuczborski, claiming that there was no standing to seek a declaration that the laws were incompatible with the institutional integrity of the Supreme Court of Queensland.
Kuczborski’s argument was framed along the lines of Kable v Director of Public Prosecutions for NSW [1996] HCA 24[3], which found that NSW’s Community Protection Act 1994 had unconstitutionally vested non-judicial powers in the state court. The High Court was not convinced that the Kable test had been made out – that policy informs the laws which are passed “does not mean that the court’s enforcement of those laws is incompatible with its institutional integrity” (at 220). The plaintiff’s argument was simply too broad.
Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. The High Court refused to see how the plaintiff was distinguishable “from that of any member of the public who is a participant in the affairs of any association.” He had no “real interest in the subject matter of the proceedings which exceeds that of a member of a general public” (French CJ, at 18). Much of this was because the declared offences were assumed to have been valid to begin with.
It is hard to see what Kuczborski could have done short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. French CJ did concede that the “risk” factor for the plaintiff may well have been greater than other members of the public, which suggests a troubling evasion of the issue. “The risks so based should not be accepted as founding a sufficiently concrete claim for declaratory relief” (19).
Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question. The High Court insists that finding special interest “is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.”[4] Cases such as Bateman’s Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd[5] suggest that the justices might be wiling to liberalise the test as “an enabling, not a restrictive, procedural stipulation”.
But more typical are cases such as Australia Conservation Foundation Inc v Cth[6], where Mason J claimed that “an interest, for present purposes, does not mean a mere intellectual or emotional concern”. In his words, “satisfying a right or a wrong, upholding a principle or winning a contest”, are insufficient considerations (at 530). The case’s conservative definition was accepted by the four member majority in Kuczborski (at 177).
Such rulings tend to wind civil liberty groups and activists. Laws that punish freedom of association may not be challenged by members of any association at risk, given a lack of “sufficient interest”. Members of the public subject to surveillance may not challenge the validity of actions dealing with unwarranted gathering and retention of data because, as general members of the public, they are indistinguishable.
Much of this resembles the idea that you cannot have standing to challenge laws from which you might suffer undue punishment. Hypothetical scenarios can’t ground remedies. In the US case of Clapper v Amnesty International USA (2013), the plaintiffs could not show to the court’s satisfaction that the secret wire tapping of US citizens under the FISA Amendments Act of 2008 had, in fact, inflicted “real, and unavoidable injury”.[7]
UMC’s counsel Wayne Baffsky is convinced that the laws will have no deterrent effect, and have the unintended effect of spreading the punitive burden across society. “What we can expect to happen now is that innocent people will continue to be put behind bars and hard working people will lose their livelihood.”[8] Queensland authorities have drawn the erroneous conclusion that the more people they arrest under the law, the more successful it must be, a view distinctly antithetical to the rule of law. The implications for targeting specific groups in the community via a legislative regime are historically all too dangerous to ignore. Queensland’s Premier Campbell Newman is nonetheless enthusiastic that other states and territories should follow. “I do indeed respectfully suggest to other state jurisdictions that they have a good look at this now.”[9]
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.
