Queensland bikie law wording distracting, say High Court judges

The full bench of the High Court is sitting in Brisbane today to hear tattooist and Hells Angels member Stefan Kuczborski’s legal team argue that key planks of the Newman government’s bikie crackdown are invalid.

Hells Angel Mr Kuczborski, who has not been charged under the new laws and is represented by barrister Ken Fleming QC, takes particular exception to the Vicious Lawless Association Disestablishment Act (VLAD).

Both Chief Justice Robert French and Justice Kenneth Hayne were critical today of the drafting and wording of the VLAD Act, which was passed by Queensland’s parliament in October last year after a bikie brawl on the Gold Coast.

Justice Hayne said the “colourful epithets” were “distracting at best”, noting that the terms “vicious” and “lawless” were not defined in the legislation.

“The drafting does obscure rather more than it reveals,” Justice Hayne said of the legislation’s motive.

Chief Justice French added: “(It) distracts the reader.”

Justice Hayne said he wondered who the reader was intended to be.

As well as the VLAD Act, which imposes higher penalties on members, office-bearers and participants of a ‘Vicious Lawless Association’ for certain declared offences, the Newman government also made changes to the state’s century-old criminal code.

Those changes mean a bikie, if they are a participant of a criminal organisation — as declared by the Queensland parliament — will be sentenced to more jail time than an ordinary citizen found guilty of the same crimes.

Mr Fleming, on behalf of Mr Kuczborski, said these provisions violated the principle of equality of justice.

“In simple terms, a person is subject to additional penalties simply by being a participant in an (organisation declared by the legislature),” he said.

“We say this result offends any meaningful concept of justice.”

Mr Fleming said a declaration of criminality of an organisation, such as the Hells Angels, should only be done by a court.

For the parliament to do so, was an “extraordinary” and “substantial impediment” to the institutional integrity of the Queensland courts, he said.

Mr Fleming gave the example of the offence of affray, or riot, which ordinarily carries a maximum penalty of one year’s jail. For a participant of a criminal organisation such as the Hells Angels, judges must now impose a mandatory minimum jail sentence of six months’ imprisonment without parole, with a maximum sentence of seven years’ jail.

Queensland solicitor-general Peter Dunning QC, for the state government, rejected Mr Fleming’s arguments. He said if an organisation was not involved in crime, it shouldn’t be difficult for an accused person to mount such a defence in court.

And Mr Dunning also questioned whether Mr Kuczborski had the legal standing to mount such a “hypothetical” argument to the High Court, given he had not been charged under the legislation.

In an interesting aside that demonstrates the far-reaching nature of the legislative changes, Mr Dunning confirmed to Justice Virginia Bell that if Mr Kuczborski and two fellow Hells Angels turned up to the High Court today, knowing each other would be there, they would be violating the law.

The hearing continues.