Kuczborski v Queensland: VLAD Law Challenges Door Still Open?

Tuesday 18 November 2014 @ 11.15 a.m. | Crime | Judiciary, Legal Profession & Procedure

As we have previously reported on 14 November 2014, the High Court of Australia handed down its decision in Kuczborski v State of Queensland [2014] HCA 46 rejecting the challenge to the validity of certain provisions of the Queensland Criminal Code and the Liquor Act 1992 (QLD) as well as finding that Mr Kuczborski (the plaintiff) did not have legal standing to challenge other provisions introduced by Vicious Lawless Association Disestablishment Act 2013 (the VLAD law).

Validity of VLAD not Examined Because of Standing

By deciding to reject Mr Kuczborski's case on the basis of Mr Kuczborski's standing to challenge the VLAD laws, the justices of the High Court did not rule on the actual constitutional validity of the VLAD legislation and the amendments to the Criminal Code and the Bail Act made by it. This leaves open the question of whether some or all of the VLAD legislative scheme violates the Commonwealth Constitution and the possibility that it will be challenged in the future by another party found to have the required standing to argue their case.

Mr Kuczborski's lawyers had argued that the VLAD suite of laws and amendments introduced by the Queensland Government were unconstitutional and should be declared invalid. In response, the Queensland Solicitor-General argued for the government that there was nothing wrong with the laws and the High Court should rule that they are valid and Mr Kuczborski had no standing in the High Court. The High Court agreed and in its decision said:

“Does (Kuczborski) have standing to seek a declaration that any ... of the provisions referred to ... is invalid?
. . .Answer: “No.’’

Why There was No Standing to Bring Action?

To have cause for an action to challenge a law in the High Court some specific interest is required, and, in this case, although Mr Kuczborski had admitted to being a “participant in a criminal organisation” (namely, the Hell's Angels), he had not been charged with a relevant offence or said that he intended to commit such an offence. Given this, it was possible to argue that the VLAD laws had no more immediate effect on Mr Kuzcborski’s rights or liberties than the rights or liberties of any other Queenslander. Following from that the High Court concluded that it was unable to hear the part of the challenge relating to the VLAD law and it simply did not consider the constitutional validity of the provisions.

Why the Unconsidered Issues Matter?

As Rebecca Ananian-Welsh writes in an article in The Conversation, the decision of the High Court in the Kuczborski case could be seen as inviting a fresh challenge to Queensland’s bikie laws rather than resolving matters. Further, as she points out, playing in the background of the case is the fact that while the immediate case related only to Queensland, several other jurisdictions are looking at similar laws:

"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."

The article points to South Australia and the Northern Territory in particular as indicating "they would consider following Queensland’s lead and enact similar laws". If such does follow, there could be further challenges in other jurisdictions, and a very long processes to resolving the validity or otherwise of the VLAD laws left unresolved by this case. As The Conversation article says:

"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."

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