FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
STEFAN KUCZBORSKI PLAINTIFF
AND
THE STATE OF QUEENSLAND DEFENDANT
Kuczborski v Queensland
[2014] HCA 46
14 November 2014
B14/2014
ORDER
The questions asked by the parties in the further amended special case dated 23 July 2014 and referred for consideration by the Full Court be answered as follows:
Question 1
Does the plaintiff have standing to seek a declaration that any, and which, of the provisions referred to in the schedule to these questions (other than Criminal Code (Q), sections 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), sections 173EB to 173ED) is invalid?
Answer
No.
Question 2
Is the relief which the plaintiff seeks in answer to question 3 (other than the relief sought in relation to the Criminal Code (Q), sections 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), sections 173EB to 173ED) hypothetical?
Answer
It is unnecessary to answer this question.
Question 3
Is any, and which, of the provisions referred to in the schedule invalid on the ground that it infringes the principle of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51?
Answer
None of ss 60A, 60B(1), 60B(2) and 60C of the Criminal Code (Q) or ss 173EB, 173EC and 173ED of the Liquor Act 1992 (Q) is invalid on the ground that it infringes the principle in Kable v Director of Public Prosecutions (NSW). The plaintiff does not have standing to challenge the validity of the other provisions in the schedule.
K C Fleming QC with W Baffsky and S Robertson for the plaintiff (instructed by Irish Bentley Lawyers)
P J Dunning QC, Solicitor-General of the State of Queensland with A J MacSporran QC, G J D del Villar and C M Tam for the defendant (instructed by Crown Law (Qld))
Intervenors
J T Gleeson SC, Solicitor-General of the Commonwealth with C L Lenehan for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
M P Grant QC, Solicitor-General for the Northern Territory with A K Chong-Fong for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
S G E McLeish SC, Solicitor-General for the State of Victoria with C P Young…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kuczborski v Queensland [2014] HCA 46
Case
[2014] HCA 46
Decision Date
CaseChat Overview and Summary
The plaintiff, Mr Kuczborski, a member of the Hells Angels Motorcycle Club, sought declarations from the High Court of Australia that the *Vicious Lawless Association Disestablishment Act 2013* (Qld) and various provisions of the *Criminal Code* (Qld), *Bail Act 1980* (Qld), and *Liquor Act 1992* (Qld) were invalid. The challenge was based on the contention that these provisions infringed the institutional integrity of State courts, as derived from the principles established in *Kable v Director of Public Prosecutions (NSW)*. The parties agreed to have the questions of law determined by way of a special case.
The High Court was required to determine whether the plaintiff possessed sufficient standing to challenge the validity of the impugned provisions. It also needed to consider whether any of the challenged provisions, particularly those in the *Criminal Code* and the *Liquor Act* that created offences involving participation in or association with "criminal organisations," offended the *Kable* principle by enlisting the courts to implement legislative or executive policy in a manner incompatible with their institutional integrity.
The Court reasoned that the plaintiff lacked standing to challenge most of the provisions. Regarding the *Kable* principle, the Court found that the impugned provisions of the *Criminal Code* and the *Liquor Act* did not infringe this principle. The Court held that the offences created by these provisions did not involve the courts being directed by the executive or enlisted to implement executive decisions in a way that compromised their institutional integrity. The Court concluded that the task given to the courts in hearing prosecutions under these provisions was compatible with their role as repositories of federal jurisdiction.
The High Court answered the questions posed in the special case. It held that the plaintiff did not have standing to seek a declaration that most of the provisions were invalid. Furthermore, the Court determined that none of the specified provisions of the *Criminal Code* or the *Liquor Act* were invalid on the ground that they infringed the principle in *Kable v Director of Public Prosecutions (NSW)*. The plaintiff was ordered to pay the costs of the special case.
Orders
Orders of the court
The questions asked by the parties in the further amended special case dated 23 July 2014 and referred for consideration by the Full Court be answered as follows:
Question 1
Does the plaintiff have standing to seek a declaration that any, and which, of the provisions referred to in the schedule to these questions (other than Criminal Code (Q), sections 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), sections 173EB to 173ED) is invalid?
Answer
No.
Question 2
Is the relief which the plaintiff seeks in answer to question 3 (other than the relief sought in relation to the Criminal Code (Q), sections 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), sections 173EB to 173ED) hypothetical?
Answer
It is unnecessary to answer this question.
Question 3
Is any, and which, of the provisions referred to in the schedule invalid on the ground that it infringes the principle of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51?
Answer
None of ss 60A, 60B(1), 60B(2) and 60C of the Criminal Code (Q) or ss 173EB, 173EC and 173ED of the Liquor Act 1992 (Q) is invalid on the ground that it infringes the principle in Kable v Director of Public Prosecutions (NSW). The plaintiff does not have standing to challenge the validity of the other provisions in the schedule.
Question 4
Who should pay the costs of the special case?
Answer
The plaintiff.
Schedule
Vicious Lawless Association Disestablishment Act 2013 (Q)
Bail Act 1980 (Q), ss 16(3A), 16(3B), 16(3C) and 16(3D)
Liquor Act 1992 (Q), ss 173EB, 173EC and 173ED
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
HAYNE J
The plaintiff, having failed in his challenge to the validity of ss 60A, 60B and 60C on Kable grounds, cannot succeed on such grounds in relation to the amendments to the Liquor Act. The declaration of an entity as a criminal organisation under par (c) enlivens the prohibitions in relation to the circumstances in which its name, logo or other insignia may be worn or carried in licensed premises. There is nothing in the construction of the definition of the offences created by the amendments to the Liquor Act that involves executive direction to, or enlistment of, the courts to implement decisions of the Executive Government in a manner incompatible with the courts' institutional integrity. In hearing and determining a prosecution for an offence against any of the impugned provisions of the Liquor Act, courts are not undertaking any function incompatible with their role as repositories of federal jurisdiction. The challenge to the validity of the impugned provisions of the Liquor Act fails.Conclusion The questions in the further amended special case should be answered as proposed in the Joint Reasons. In October 2013, the Queensland Parliament enacted the Vicious Lawless Association Disestablishment Act 2013 (Q) ("the VLAD Act"), the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Q) ("the Disruption Act") and the Tattoo Parlours Act 2013 (Q). The Disruption Act made numerous amendments to several Acts. So far as presently relevant, the Tattoo Parlours Act amended the Liquor Act 1992 (Q). The plaintiff, Mr Kuczborski, is a member of the Brisbane Chapter of the Hells Angels Motorcycle Club. He has brought proceedings in the original jurisdiction of this Court challenging the validity of the VLAD Act, the validity of some of the provisions inserted or amended in other Acts by the Disruption Act and the validity of the amendments made to the Liquor Act by the Tattoo Parlours Act. He alleges that the impugned provisions offend the principles derived from Kable v Director of Public Prosecutions (NSW)[75]. [75](1996) 189 CLR 51; [1996] HCA 24. The parties have agreed to state questions of law in the form of a special case. Those questions ask about the validity of the impugned provisions but also raise issues about whether some of the questions of validity are, so far as the plaintiff is concerned, hypothetical questions, questions which he has no standing to raise, or both. The structure of these reasons It is important to begin consideration of the questions which the parties have asked from a proper understanding of the impugned provisions. Having first identified what provisions are impugned, it is necessary to describe the general scheme of which the impugned provisions form a part and then deal with some particular features of the impugned provisions. From there it will be convenient to deal with the questions about standing and hypothetical issues, then describe the Kable principles and, finally, consider the application of those principles. The impugned provisions