High Court told VLAD allows government to determine which groups are criminal, not the courts but constitution does not contain principle of equal justice
- The Courier-Mail
- September 03, 2014
Lawyers for Hells Angels Motorcycle Club member Stefan Kuczborski yesterday told the High Court of Australia a “suite of laws and amendments’’ introduced by the Newman Government were unconstitutional and should be declared invalid.
Queensland Solicitor-General Peter Dunning, for the Crown, argued the “suite of laws and amendments’’ touted by Mr Kuczborski’s legal team were valid and the court should rule as such.
He submitted Mr Kuczborski had no standing in the High Court, an argument supported by Australia’s Solicitor-General, Justin Gleeson, SC, on behalf of the Commonwealth.
Mr Gleeson said the Federal Government also adopted the submissions of the State Government to support their case.
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A seven-member full High Court bench, sitting in Brisbane, was told the Vicious Lawless Disestablishment Act (VLAD) 2013 did not allow for the constitutionally required separation of powers between the legislature by allowing the government to determine which groups were criminal organisations, not the courts.
Barrister Ken Fleming, QC, for Mr Kuczborski, told the court that as the law currently stands, any person charged with being a participant under the VLAD Act has been done so without any ruling by a court as to whether the entity they belong to is a criminal organisation.
Mr Dunning rejected the notion saying: “(The legislation) does not pick up someone who attended two meetings of an organisation 20 years ago, it’s not a situation that once somebody has attended a meeting of an organisation they will be (forever associated with it).”
Asked if a government minister could declare an organisation criminal for merely being seen as a threat to public order, Mr Dunning said: “It would be a requirement that the minister form a satisfaction that the organisation is engaging in serious criminal activity and is a threat to public welfare.”
He said examples of criminal behaviour included “intimidating another organisation, or extracting money from shopkeepers”.
Lawyers for Attorney-General Jarrod Bleijie have argued Mr Kuczborski has “no standing’’ in the High Court because he has not been charged under the laws.
Mr Kuczborski, a member of the Hells Angels Brisbane chapter, in March initiated a test of the LNP’s laws in the High Court – flagging his intention to challenge their validity. His application is supported by the United Motorcycle Council of Queensland.
Mr Fleming said Mr Kuczborski admits to being a Hells Angels and although he has never been charged under the VLAD Act, the new legislation places an unfair and unconstitutional onus on him to prove he was not a participant of a criminal organisation no matter what offence he is charged with – even if it has no connection to the organisation.
The court was given the analogy that Mr Kuczborski faced charges and jail for simply attending club meetings in which discussions pertained to fundraising for a children’s hospital.
Mr Fleming said that reverse onus robbed his client of the constitutional right of “equality before the law’’.
“(There is) no equality before the law if (a) person commits an offence that has no connection with (but is subsequently linked) with his participation or membership of a criminal organisation,’’ he said.
The Hells Angels is declared a “criminal organisation’’ under the Criminal Code and Crime and Corruption Act. Last year the Government enacted the VLAD Act and made variations to Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and Tattoo Parlours Act 2013.
The VLAD Act requires anyone committed of a serious offence while a participant in an association, like an outlaw bikie gang, to be declared a “vicious lawless associate’’ and face mandatory 15-year jail terms added to the sentence they receive.
That is increased by 10 years for “association office bearers’’. The laws also give powers to prosecute anyone for the “crime’’ of meeting in public.
The case continues.