Kuczborski v Queensland - [2014] HCA 46

HIGH COURT OF AUSTRALIA
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.
Question 4
Who should pay the costs of the special case?
Answer
The plaintiff.
Schedule
Vicious Lawless Association Disestablishment Act 2013 (Q)

Criminal Code (Q), ss 60A, 60B(1), 60B(2), 60C, 72(2), 72(3), 72(4), 92A(4A), 92A(4B), 92A(5), 320(2), 320(3), 320(4), 340(1A), 340(1B) and 340(3)
Bail Act 1980 (Q), ss 16(3A), 16(3B), 16(3C) and 16(3D)
Liquor Act 1992 (Q), ss 173EB, 173EC and 173ED

Representation
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 for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia with A J Sefton for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Kuczborski v Queensland

Constitutional law (Cth) – Standing – Plaintiff sought declaration that Vicious Lawless Association Disestablishment Act 2013 (Q) and provisions of the Criminal Code (Q), Bail Act 1980 (Q) and Liquor Act 1992 (Q) were invalid – Where certain provisions only operated where offence committed against existing unchallenged laws – Whether plaintiff had sufficient interest to bring action.
Constitutional law (Cth) – Constitution, Ch III – Institutional integrity of State courts – Where ss 60A, 60B(1), 60B(2) and 60C of Criminal Code created offences elements of which involved being a "participant" in a "criminal organisation" – Where ss 173EB, 173EC and 173ED of Liquor Act created offences elements of which involved wearing symbols of membership of a "declared criminal organisation" – Where power, by regulation, to declare organisation a "criminal organisation" – Whether impugned provisions offended principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – Whether Court enlisted to implement legislative or executive policy – Whether task given to Court incompatible with institutional integrity.
Words and phrases – "association", "criminal organisation", "institutional integrity", "Kable principle", "participant", "standing", "sufficient interest".
Bail Act 1980 (Q), ss 16(3A), 16(3B), 16(3C), 16(3D).
Criminal Code (Q), ss 60A, 60B(1), 60B(2), 60C, 72(2), 72(3), 72(4), 92A(4A), 92A(4B), 92A(5), 320(2), 320(3), 320(4), 340(1A), 340(1B), 340(3).
Liquor Act 1992 (Q), ss 173EB, 173EC, 173ED.
Vicious Lawless Association Disestablishment Act 2013 (Q).

FRENCH CJ.
Introduction

The plaintiff is a member of the Brisbane Chapter of the Hells Angels Motorcycle Club ("the Club") and a former office bearer of a Sydney Chapter. By proceedings instituted in the original jurisdiction of this Court, he challenges the validity of legislation enacted by the Parliament of Queensland, which is directed at disrupting the operations of such clubs and other associations. He asserts that the legislation confers functions on Queensland courts which, contrary to Ch III of the Constitution, are incompatible with their institutional integrity. The impugned legislation was enacted in a package and comprises the Vicious Lawless Association Disestablishment Act 2013 (Q) ("the VLAD Act"), new provisions of the Criminal Code (Q) ("the Criminal Code") and the Bail Act 1980 (Q) ("the Bail Act") enacted by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Q) ("the Amendment Act") and amendments to the Liquor Act 1992 (Q) ("the Liquor Act") made by the Tattoo Parlours Act 2013 (Q). The VLAD Act provides for significant additional penalties by way of imprisonment to be imposed upon persons convicted of declared offences who are participants in associations which have not been shown not to have a criminal purpose. New provisions in the Criminal Code provide for enhanced penalties to be imposed on persons, convicted of certain offences against the Criminal Code, in the aggravating circumstance where such persons are participants in organisations which are found to be, or have been declared by the Supreme Court or designated by regulation as, criminal organisations. The amendments to the Bail Act impose constraints upon the grant of bail to persons who are participants in such organisations if they are charged with any offences. Further amendments to the Criminal Code create new offences which effectively impose restrictions upon the freedom of movement and association of participants in criminal organisations. Amendments to the Liquor Act proscribe the wearing or carrying in licensed premises of items bearing insignia and other markings of criminal organisations.
The plaintiff seeks declarations that the impugned provisions are invalid. Given that he has not been charged with any offence which would attract the additional or enhanced penalties under the VLAD Act and the Criminal Code and the new constraints on the grant of bail under the Bail Act, Queensland contests his standing to challenge those provisions[1]. The parties have agreed questions in a special case referred to the Full Court going to the plaintiff's standing and the validity of the legislation. It is necessary to consider the impugned provisions, the nature of the challenges to each of them, and the related questions of jurisdiction and standing where they are in issue. As explained in these Reasons, the plaintiff lacks standing to challenge the VLAD Act, the aggravating circumstance provisions of the Criminal Code and the amendments to the Bail Act. His challenges to the validity of the new offence-creating provisions of the Criminal Code and the new provisions of the Liquor Act fail on their merits.
[1]The text of the relevant provisions is set out in the Joint Reasons. They are, for the most part, paraphrased in these Reasons.
Jurisdiction, standing and declaratory relief
The jurisdiction which the plaintiff invokes is that conferred on this Court, pursuant to s 76(i) of the Constitution, by s 30(a) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") in "all matters arising under the Constitution or involving its interpretation". That jurisdiction cannot and does not extend to authorise the Court to make a declaration of the law divorced from any attempt to administer that law[2]. However, in proceedings for a declaration of the invalidity of an impugned law, the law that is being administered is not the impugned law but the constitutional law which determines its validity or invalidity[3].
[2]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266–267 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; [1921] HCA 20; Mellifont v Attorney‑General (Q) (1991) 173 CLR 289 at 303 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; [1991] HCA 53.
[3]Croome v Tasmania (1997) 191 CLR 119 at 126 per Brennan CJ, Dawson and Toohey JJ; [1997] HCA 5.
This Court held in In re Judiciary and Navigation Acts that a matter in respect of which jurisdiction is conferred on the Court under s 76 of the Constitution must be concerned with "some immediate right, duty or liability to be established by the determination of the Court."[4] That criterion is not to be read unduly restrictively. Where a declaration of the invalidity of a criminal statute is sought, it is not necessary in order to satisfy it that "the Executive Government of the State has, at least, invoked legal process against the particular citizen to enforce the criminal law."[5] In their joint judgment in Croome v Tasmania, in which Gaudron, McHugh and Gummow JJ made that observation, they referred[6] to the judgment of Dixon J in British Medical Association v The Commonwealth[7] concerning the operation of the Pharmaceutical Benefits Act 1947 (Cth) prohibiting medical practitioners from writing prescriptions, other than on a prescription form supplied by the Commonwealth, and said[8]:
"There was no suggestion that it was necessary for the plaintiffs to show that there already had been set in motion against them the punitive provisions of the legislation. It was significant enough that the plaintiffs 'faced possible criminal prosecution'." (footnote omitted)
[4](1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; see also Fencott v Muller (1983) 152 CLR 570 at 591 per Gibbs CJ, 603 per Mason, Murphy, Brennan and Deane JJ; [1983] HCA 12; Mellifont v Attorney‑General (Q) (1991) 173 CLR 289 at 303 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 316 per Brennan J, 321–322 per Toohey J; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; [1992] HCA 10; Croome v Tasmania (1997) 191 CLR 119 at 127 per Brennan CJ, Dawson and Toohey JJ; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356 [47]–[48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9.
[5]Croome v Tasmania (1997) 191 CLR 119 at 136 per Gaudron, McHugh and Gummow JJ, see also at 127 per Brennan CJ, Dawson and Toohey JJ.
[6](1997) 191 CLR 119 at 137–138.
[7](1949) 79 CLR 201 at 257; [1949] HCA 44.
[8](1997) 191 CLR 119 at 138 referring to a phrase used in Diamond v Charles 476 US 54 at 64 (1986).
The question whether there is a matter grounding federal jurisdiction to entertain a claim for relief is linked to the question of standing to claim that relief. They are concepts with distinct origins and histories. Standing is a question that arises in federal and non‑federal jurisdictions. Both concepts are concerned to "mark out the boundaries of judicial power"[9]. Their attempted severance has been described as "conceptually awkward, if not impossible."[10] Gummow, Crennan and Bell JJ observed in Pape v Federal Commissioner of Taxation[11]:
"It is now well established that in federal jurisdiction, questions of 'standing' to seek equitable remedies such as those of declaration and injunction are subsumed within the constitutional requirement of a 'matter'." (footnote omitted)
That does not mean, as Gaudron J observed in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd[12], "that, for the purposes of Ch III, questions of standing are wholly irrelevant." A negative answer to the question — is there a matter before the Court in which it has federal jurisdiction? — would render the question of the plaintiff's standing moot. On the other hand, an affirmative answer to the question — is there a matter? — may not be sufficient to answer the question whether the plaintiff has standing[13].
[9]Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262 [37] per Gaudron, Gummow and Kirby JJ; [1998] HCA 49 quoting from Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ.
[10]Croome v Tasmania (1997) 191 CLR 119 at 132 per Gaudron, McHugh and Gummow JJ.
[11](2009) 238 CLR 1 at 68 [152]; [2009] HCA 23.
[12](2000) 200 CLR 591 at 611 [45]; [2000] HCA 11.
[13]See generally Evans, "Standing To Raise Constitutional Issues Reconsidered", (2010) 22(3) Bond Law Review 38, especially at 57.
A law which proscribes specified conduct as a criminal offence affects the freedom of a person who would otherwise engage in that conduct. If there is an arguable question whether such a law, properly interpreted, would prohibit what that person intends or wishes to do, he or she may have standing, in a court with the relevant jurisdiction[14], to seek a declaration that the intended or desired conduct is not unlawful[15]. Similarly, if there is an arguable question that the law is invalid, there may be standing to seek a declaration to that effect[16]. As a general rule, however, declaratory relief cannot be claimed as a way of obtaining legal advice from a court or answering an hypothetical question divorced from a real controversy. As Mason CJ, Dawson, Toohey and Gaudron JJ said in Ainsworth v Criminal Justice Commission[17]:
"declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'." (footnotes omitted)
[14]The question may arise in federal or non-federal jurisdictions depending upon the source of the law.
[15]The Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305 per Barwick CJ; [1972] HCA 19; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356 [47]–[48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. See also Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; Airedale NHS Trust v Bland [1993] AC 789 at 862 per Lord Goff of Chieveley, 880–881 per Lord Browne‑Wilkinson.
[16]If the question concerns the validity of an Act of a parliament, it will most likely arise in federal jurisdiction. If it goes to the validity of delegated legislation, it may arise in federal or non‑federal jurisdiction depending upon the source of the empowering legislation.
[17](1992) 175 CLR 564 at 582.
This Court has sometimes dealt with a question of standing as a preliminary issue and on other occasions proceeded to deal with the case on its merits, including the issue of standing as one among other issues[18]. In Robinson v Western Australian Museum[19], Gibbs J observed that if a plaintiff's claim to have standing were merely colourable, the court would no doubt proceed to determine that question immediately and, determining it against the plaintiff, dismiss the action. His Honour went on to say that if determination of standing requires the consideration of important questions which may never fall for decision if the plaintiff's claim is dismissed on its merits, it may be more convenient to determine the validity of the challenged statute. That discretion is, of course, always subject to the constraint that the court cannot decide validity as an abstract or hypothetical question[20].
[18]Robinson v Western Australian Museum (1977) 138 CLR 283 at 302 per Gibbs J; [1977] HCA 46; Paterson v O'Brien (1978) 138 CLR 276 at 282; [1978] HCA 2; Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 532–533 per Gibbs J, 546 per Stephen J, 552 per Mason J; [1980] HCA 53; Allars, "Standing: The Role and Evolution of the Test", (1991) 20 Federal Law Review 83 at 89–91; Taylor, "Standing to Challenge the Constitutionality of Legislation", in Stein (ed), Locus Standi, (1979) 143 at 145.
[19](1977) 138 CLR 283 at 302.
[20](1977) 138 CLR 283 at 302–303.
In Robinson, the Commonwealth and a number of States had intervened on both sides of the case and questions of validity had been very fully examined. Those facts, in the opinion of Gibbs J, supported the conclusion that the question of validity should be determined and the action should not be dismissed for want of standing[21]. In Williams v The Commonwealth[22], where issue had been joined on both sides of the questions raised by the plaintiff, the question of the plaintiff's standing was put to one side. There was a matter before the Court agitated by parties with standing independently of the plaintiff's standing. That is not this case. The Commonwealth and the intervening States and the Northern Territory made common cause in support of the impugned legislation. In any event, as appears below, the plaintiff's claim to have standing in relation to the VLAD Act, the aggravated circumstance provisions of the Criminal Code and the impugned provisions of the Bail Act is unsustainable. The question of standing converges upon the constitutional question of jurisdiction and is appropriately determined at the outset.
[21](1977) 138 CLR 283 at 303.
[22](2012) 248 CLR 156 at 223–224 [112] per Gummow and Bell JJ, French CJ agreeing at 181 [9], Hayne J agreeing at 240 [168], Crennan J agreeing at 341 [475], Kiefel J agreeing at 361 [557]; [2012] HCA 23.
The VLAD Act
At the heart of the VLAD Act is the term "vicious lawless associate", which is defined in s 5(1) of the Act as a person who:
"(a)commits a declared offence; and
(b)at the time the offence is committed, or during the course of the commission of the offence, is a participant in the affairs of an association (relevant association); and
(c) did or omitted to do the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association."
The status of "participant in the affairs of an association" attaches to a person who "asserts, declares or advertises his or her membership of, or association with, the association"[23], a person who "seeks to be a member of, or to be associated with, the association"[24] and a person who "has attended more than 1 meeting or gathering of persons who participate in the affairs of the association in any way"[25]. It also includes a person who "has taken part on any 1 or more occasions in the affairs of the association in any other way."[26] The term "participating in the affairs of ... the relevant association" in s 5(1)(c) bears a corresponding meaning[27]. Participation does not necessarily involve any criminal act or purpose.
[23]VLAD Act, s 4(a).
[24]VLAD Act, s 4(b).
[25]VLAD Act, s 4(c).
[26]VLAD Act, s 4(d).
[27]Acts Interpretation Act 1954 (Q), s 32.

The VLAD Act provides that a court sentencing a "vicious lawless associate" for a declared offence must impose a further sentence of 15 years imprisonment[28]. In the case of a "vicious lawless associate" who was, at the time of the commission of the declared offence, an office bearer of an association, there is a further mandated cumulative sentence of 10 years imprisonment[29]. The additional sentences cannot be mitigated or reduced under any other Act or law[30]. If the base sentence did not involve a term of imprisonment, the vicious lawless associate is to immediately begin to serve the further sentence provided for by s 7(1)(b)[31]. There is no eligibility for parole during any period of imprisonment for a further sentence[32].
[28]VLAD Act, s 7(1)(b).
[29]VLAD Act, s 7(1)(c).
[30]VLAD Act, s 7(2)(a).
[31]VLAD Act, s 7(3).
[32]VLAD Act, s 8(1).
It is not necessary, in order to attract those additional sentences, that the prosecution prove that the relevant association has a criminal purpose. There is, however, a carve out from the definition of "vicious lawless associate" by way of the defence in s 5(2), the burden of proving which rests upon the alleged associate:
"a person is not a vicious lawless associate if the person proves that the relevant association is not an association that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, declared offences."
Declared offences are set out in Sched 1 to the VLAD Act. They may also be prescribed by regulation[33]. The range of the declared offences in Sched 1 is wide in subject matter and gravity. They include offences punishable by a maximum sentence of one year's imprisonment[34] up to offences punishable by imprisonment for life[35]. Under the VLAD Act, it is quite possible that a person who would not receive a custodial sentence for a declared offence in the lower range of seriousness would nevertheless, if an officer of a relevant association, be sentenced to a mandatory 25 years imprisonment.
[33]VLAD Act, s 3, definition of "declared offence", s 10.
[34]The offence of affray under s 72 of the Criminal Code is punishable by a maximum penalty of one year's imprisonment, although it attracts an enhanced penalty under the new s 72(2) of the Criminal Code if the person convicted is a participant in a criminal organisation.
[35]See eg Criminal Code, s 305.
Neither "vicious" nor "lawless" is a defined term. The class of persons designated by the VLAD Act as "vicious lawless associates" may include some who would attract the epithets "vicious" and "lawless" in ordinary parlance. It includes persons who would not. The class of declared offences includes offences which, according to the facts of a particular case, could be described as "vicious". It includes offences which would not.
The term "association" in the VLAD Act is defined as meaning any of a corporation, an unincorporated association, a club or league and any group of three or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal[36]. Only a tiny minority of the range of the bodies or groups covered by the definition of "association" could conceivably attract the description "vicious" or "lawless". The term "vicious lawless association", which appears in the title to the VLAD Act, is not defined and appears nowhere in the body of the Act. It is a piece of rhetoric which is at best meaningless and at worst misleads as to the scope and substance of the law.
[36]VLAD Act, s 3, definition of "association".
The challenge to the VLAD Act
The plaintiff characterised the VLAD Act as requiring courts to impose long custodial sentences on certain offenders based not on the seriousness of their offences but on their association with a particular group. He pointed to the inequality of the treatment which courts are required to mete out to persons convicted of declared offences depending upon whether or not they were participants in the affairs of a relevant association. He submitted that the VLAD Act is invalid because it confers a function on courts offensive to the principle of equality before the law and thereby repugnant to the judicial process, and also because it requires the courts in reality to act as instruments of the Executive.
Queensland contended that the plaintiff's claim should not be considered because, not having been charged with a declared offence, he lacked legal standing to seek a declaration that the VLAD Act is invalid. As explained below, that submission should be accepted. The question of the validity of the VLAD Act must await consideration on another day.
The VLAD Act — the plaintiff's standing
The plaintiff's case in relation to the VLAD Act is not one in which declaratory relief is sought concerning the lawfulness of intended conduct. He does not complain that his freedom to act is constrained by the direct legal operation of the Act. The mandatory penalties for which the VLAD Act provides would only be imposed if and when the plaintiff were convicted of a declared offence created by another law. The validity of the laws creating the declared offences is not in question. If and when the plaintiff were to commit a declared offence and the prosecution were to invoke the provisions of the VLAD Act against him, it would be open to him to contend that those provisions are invalid.
The plaintiff nevertheless submitted that, as a member of the Club, he is a participant in the affairs of a "relevant association" for the purposes of the VLAD Act. He could become subject to very significant penalties and other restrictions which would not apply to him if he were to cease to be a participant in the Club or any other association. He submitted that he has a real interest in the subject matter of the proceedings which exceeds that of a member of the general public. That submission should be rejected.
In a formal sense, the plaintiff's position under the VLAD Act is indistinguishable from that of any other member of the public who is a participant in the affairs of any association. It may be accepted, as a practical matter, that his current membership of the Club, which has been designated as a "criminal organisation" under two separate provisions of Queensland law[37], puts him at risk of exposure to a significant additional penalty if he were to be charged with a declared offence. It may be assumed that the risk he faces in that respect is greater than that of most other members of the public. Whether the VLAD Act would apply to him, however, would depend, among other things, upon whether he was charged with a declared offence and whether it was alleged that the conduct constituting that offence was done for the purposes of, or in the course of participating in the affairs of, the Club. It is not suggested that any of the contingencies which would attract the application of the VLAD Act provisions to the plaintiff has arisen. Given that the validity of the laws creating the declared offences is not in dispute, he could hardly expect to be heard by this Court on the basis that he intended to contravene one or more of those laws. Nor does he do so. The risk of exposure to draconian penalties, which he invokes in support of the assertion that he has standing, is a risk that he will be charged with, and convicted of, committing a declared offence. The risks so based should not be accepted as founding a sufficiently concrete claim for declaratory relief. It is a foundation resting upon contingencies which, if they did occur, could occur in a variety of factual circumstances. It is a foundation which is singularly unattractive in terms of public policy as justifying access to the exercise of judicial power. The plaintiff does not have standing to challenge the validity of the VLAD Act.
[37]For the purposes of the Criminal Code by s 2 of the Criminal Code (Criminal Organisations) Regulation 2013 (Q) and for the purposes of the Crime and Corruption Act 2001 (Q) by s 18 of the Crime and Corruption Regulation 2005 (Q).
Criminal organisations under the Criminal Code
Central to the impugned provisions, other than the VLAD Act, is the concept of a "criminal organisation" and the status of a "participant in a criminal organisation". The term "criminal organisation" in s 1 of the Criminal Code was redefined by the Amendment Act to mean:
"(a)an organisation of 3 or more persons—
(i)who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity as defined under the Criminal Organisation Act 2009; and
(ii)who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or
(b)a criminal organisation under the Criminal Organisation Act 2009; or
(c)an entity declared under a regulation to be a criminal organisation."
The new definition of "criminal organisation" applies to that term as used in the new offence-creating provisions of the Criminal Code, ss 60A, 60B and 60C, save for an exclusion in s 60C of criminal organisations under the Criminal Organisation Act 2009 (Q) ("the CO Act"), which is not material for present purposes. The definition is also adopted in the new provisions of the Criminal Code which render the status of participant in a criminal organisation an aggravating circumstance in relation to certain existing offences. It is adopted in the Bail Act[38] and is used in the new subsections of that Act, ss 16(3A)–16(3D), which are challenged in these proceedings. Paragraph (c) of the definition is incorporated in the definition of a "declared criminal organisation" in s 173EA of the Liquor Act for the purposes of the impugned amendments to that Act[39].
[38]Bail Act, s 6, definition of "criminal organisation".
[39]Liquor Act, ss 173EB–173ED.
The criteria for an organisation to be found to be a criminal organisation pursuant to par (a) are closely similar to the criteria which can lead to the declaration of an organisation by the Supreme Court as a criminal organisation for the purposes of the CO Act[40] and thus bring it within par (b) of the definition in the Criminal Code. In each case the characterisation of an organisation as a criminal organisation requires findings of fact by a court, either in proceedings under the Criminal Code in which par (a) of the definition is relied on, or, where par (b) is relied upon, in earlier proceedings under the CO Act.
[40]CO Act, s 10(1).
Paragraph (c) of the definition is in a different category. It contemplates the declaration of entities as criminal organisations by regulation rather than judicial determination. It directs attention to the general regulation-making power in s 708 of the Criminal Code:
"The Governor in Council may make regulations under this Code."
The term "Governor in Council" is defined in s 27 of the Constitution of Queensland 2001 (Q) as "the Governor acting with the advice of Executive Council."[41]
[41]See also Acts Interpretation Act, Sched 1, meaning of "Governor in Council" read with s 36(1).
Section 70 of the Amendment Act, by a rather unusual mechanism, enacts a regulation titled the Criminal Code (Criminal Organisations) Regulation 2013 ("the Regulation"), which is set out in Sched 1 to the Amendment Act. The regulation so created declares entities listed in it to be criminal organisations. One of the entities so declared is "the motorcycle club known as the Hells Angels". Section 70 provides:
"(1)Schedule 1 has effect to make the Criminal Code (Criminal Organisations) Regulation 2013 that is set out in schedule 1 as a regulation under the Criminal Code.
(2)To remove any doubt, it is declared that the Criminal Code (Criminal Organisations) Regulation 2013, on the commencement of schedule 1, stops being a provision of this Act and becomes a regulation made under the Criminal Code."
Section 708A, introduced into the Criminal Code by the Amendment Act, sets out matters to which the Minister may have regard in "deciding whether to recommend" an amendment to the Regulation to declare an entity to be a criminal organisation. The matters to which the Minister may have regard are wide-ranging and include "any information suggesting a link exists between the entity and serious criminal activity"[42] and "any other matter the Minister considers relevant."[43] It may be inferred that those are matters to which the Governor in Council may have regard in amending the Regulation. The Solicitor‑General of Queensland submitted that the Minister would be constrained to consideration of matters relevant to whether the organisation had, as one of its purposes, the commission of serious criminal offences and the effect of such purposes on public order. It is not necessary to determine the limits of "relevant" matters for present purposes.
[42]Criminal Code, s 708A(1)(a).
[43]Criminal Code, s 708A(1)(e).
The status "participant in a criminal organisation" is defined in the offence-creating provision, s 60A of the Criminal Code, and that definition is adopted in the other offence-creating provisions, ss 60B and 60C. It is adopted in the aggravating circumstance provisions of the Criminal Code, ss 72(2), 92A(4A), 320(2) and 340(1A), and for the purposes of the impugned provisions of the Bail Act[44]. The definition covers directors or officers (if the organisation is a body corporate)[45], and any person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation[46] or who seeks to be a member of, or to be associated with, the organisation[47]. It extends to a person who attends more than one meeting or gathering of persons who participate in the affairs of the organisation in any way[48] and a person who takes part in the affairs of the organisation in any other way[49]. It does not include a lawyer acting in a professional capacity[50].
[44]Bail Act, s 6.
[45]Criminal Code, s 60A(3), par (a) of definition.
[46]Criminal Code, s 60A(3), par (b) of definition.
[47]Criminal Code, s 60A(3), par (c) of definition.
[48]Criminal Code, s 60A(3), par (d) of definition.
[49]Criminal Code, s 60A(3), par (e) of definition.
[50]Criminal Code, s 60A(3), definition of "participant".
The Criminal Code — aggravating circumstance provisions
The plaintiff challenged the validity of a number of new provisions of the Criminal Code introduced by the Amendment Act which treat status as a participant in a criminal organisation as an aggravating circumstance attracting enhanced or additional penalties in respect of certain offences.
The offences to which the circumstance of aggravation applies are offences for which the Criminal Code already provides. They are affray[51], misconduct in relation to public office[52], grievous bodily harm[53] and serious assault upon a police officer[54]. Enhanced penalties attaching to the aggravating circumstance are provided for in new subsections introduced into each of the offence-creating provisions[55]. It is a defence to the circumstance of aggravation in each case "to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity."[56]
[51]Criminal Code, s 72(1).
[52]Criminal Code, s 92A(1) and (2).
[53]Criminal Code, s 320(1). The aggravating circumstance provision applies in the circumstance in which grievous bodily harm is inflicted upon a police officer: s 320(2).
[54]Criminal Code, s 340(1)(b).
[55]Criminal Code, ss 72(2), 92A(4A), 320(2) and 340(1A).
[56]Criminal Code, ss 72(3), 92A(4B), 320(3) and 340(1B).
Aggravating circumstance provisions — the plaintiff's standing
The plaintiff's challenge to the aggravating circumstance provisions ran along similar lines to his challenge to the VLAD Act. The liability to the greater penalties could arise whether or not there was any connection between an accused person's participation in a criminal organisation and the offences charged. The plaintiff submitted, in substance, that those provisions obliged courts to impose penalties which lacked a rational connection to the seriousness of the offender's criminal conduct.
As with the plaintiff's challenge to the VLAD Act, the plaintiff's claim for declaratory relief was based upon the risk of an enhanced penalty if he should be charged with an offence in respect of which the circumstance of aggravation was alleged. He has not been charged with any such offence. There is no suggestion that he has committed or is likely to commit any such offence.
The offence-creating provisions to which the circumstance of aggravation is attached proscribe certain conduct. The plaintiff did not challenge those proscriptions. His freedom to act is not further constrained by the circumstance of aggravation. If he were charged with any of the relevant offences, and the circumstance of aggravation was alleged, he could, no doubt, raise a challenge to the validity of the enhanced penalties in or collaterally to the criminal proceedings against him. The plaintiff argues that the provisions affect the question whether he should dissociate from the Club so as to avoid their application. As with his challenge to the VLAD Act, that concern does not support his claim for declaratory relief where his standing rests upon contingencies, including the contingency that he will have been charged with one of the relevant offences.
The Bail Act
The Amendment Act introduced new subss (3A)–(3D) into s 16 of the Bail Act. Subsection (3A) sets out circumstances in which a court, or police officer authorised to give bail, must refuse bail. Prior to the amendment, s 16 relevantly mandated refusal of bail only if there was an unacceptable risk that the defendant, if released on bail, would not appear and surrender into custody, or would, while released on bail, commit an offence, endanger the safety or welfare of an alleged victim or anyone else, or interfere with witnesses or otherwise obstruct the course of justice[57].
[57]Bail Act, s 16(1).
Section 16(3A) additionally requires that, unless the defendant shows cause why detention in custody is not justified, bail must be refused where the defendant is charged with an offence and it is alleged that he or she is, or has at any time been, a participant in a criminal organisation. It does not matter, for the purposes of s 16(3A), whether the offence charged is an indictable offence, a simple offence or a regulatory offence[58], or whether the defendant is alleged to have been a participant in a criminal organisation when the offence was committed[59]. Nor does it matter that there is no link between the defendant's alleged participation in a criminal organisation and the offence with which the defendant is charged[60].
[58]Bail Act, s 16(3C)(a).
[59]Bail Act, s 16(3C)(b).
[60]Bail Act, s 16(3C)(c).
The Bail Act — the plaintiff's standing
The plaintiff submitted that the amendments to the Bail Act are directed towards keeping a particular class of person in custody by reason of their associations rather than by reason of the risks of release. He submitted that requiring courts to proceed in this manner would undermine their institutional integrity. It is not necessary to consider the merits of that argument.
The plaintiff has not been charged with any offence to which the new provisions of the Bail Act might apply. There is a wide variety of circumstances relevant to the question under s 16(3A)(a) whether he could show cause why his detention in custody would not be justified. The inchoate nature of the question which the plaintiff's application presents to the Court on this aspect of his case again indicates that there is no concrete basis upon which he can base his claim for declaratory relief.
The new offence-creating provisions of the Criminal Code

In addition to providing for enhanced penalties for existing offences against the Criminal Code, the Amendment Act has introduced new offence‑creating provisions, ss 60A, 60B and 60C of the Code. The new provisions make it an offence for a person who is a participant in a criminal organisation to:
•be knowingly present in a public place with two or more other persons who are participants in a criminal organisation[61];
•enter, or attempt to enter, a prescribed place[62];
•attend, or attempt to attend, a prescribed event[63]; or
•recruit, or attempt to recruit, anyone to become a participant in a criminal organisation[64].
It is an element of the offence in each case that the defendant "is a participant in a criminal organisation". As with the aggravating circumstance provisions, it is a defence in each case to prove that "the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity."[65] The term "criminal activity" is not defined. The Solicitor‑General of Queensland accepted that it would cover any contravention of the law attracting a penalty.
[61]Criminal Code, s 60A(1).
[62]Criminal Code, s 60B(1).
[63]Criminal Code, s 60B(2).
[64]Criminal Code, s 60C(1).
[65]Criminal Code, ss 60A(2), 60B(3), 60C(2).
Given that the plaintiff is a member of the Club, which is designated as a criminal organisation, the offence-creating provisions of the Criminal Code directly affect, inter alia, his freedom of movement and association. His claim for declaratory relief that the provisions are invalid invokes the jurisdiction of the Court under s 30(a) of the Judiciary Act. The matter is one on which it is properly conceded that the Court has jurisdiction and the plaintiff has standing[66].
[66]The concession did not extend to s 60B(2). However, it is not necessary to consider this matter.
The challenge to the offence-creating provisions of the Criminal Code
In the amended statement of claim, the plaintiff alleged that the question whether an organisation is a "criminal organisation" for the purposes of ss 60A, 60B and 60C of the Criminal Code can be predetermined by declaration in a regulation. A person accused of an offence against one of the provisions would bear the onus of establishing what was described as "an impossible negative proposition" that the relevant organisation was one "whose members do not have as their purpose, or one of their purposes, engaging in, or conspiring to engage in, criminal activity". Although the amended statement of claim was wide‑ranging in its attack upon those provisions, the further amended special case, as reflected in question 3, was confined to a challenge based upon principles derived from Kable v Director of Public Prosecutions (NSW)[67] and subsequent decisions.
[67](1996) 189 CLR 51; [1996] HCA 24.
The principles developed from and since the decision of this Court in Kable preclude State legislatures from enacting a law which would be repugnant to, or incompatible with, the institutional integrity of State courts as elements of the national integrated judicial system. In particular applications of that proposition it has been held that State legislatures cannot:
•effect an impermissible executive intrusion into the processes or decisions of a court;
•authorise the Executive to enlist a court to implement decisions of the Executive in a manner incompatible with that court's institutional integrity; or
•confer upon a court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction[68].
In so saying, I agree with Hayne J[69] that, whatever particular propositions have emerged from particular cases, there is no single comprehensive statement of the content to be given to the essential notion of repugnancy to, or incompatibility with, the institutional integrity of State courts. The question of substance in relation to the plaintiff's challenge to ss 60A, 60B and 60C of the Criminal Code is whether their attachment of norms or proscriptions of conduct to participation in a class of entity determined by legislative or executive declaration to be a criminal organisation offends against that essential notion.
[68]Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J; [2011] HCA 24.
[69]Reasons of Hayne J at [106].
The Club of which the plaintiff is a member was declared a criminal organisation by operation of s 70 of the Amendment Act, albeit that declaration was effected by enacting a schedule to the Amendment Act to be treated as a regulation. That regulation was subject thereafter to the regulation-making power in s 708 of the Criminal Code to be exercised, in relation to amendments to the Regulation, by reference to s 708A. The declaration of the Club and a number of other entities as criminal organisations was therefore effected by an Act of the Queensland Parliament and the amendment of that list, by addition or subtraction, entrusted to the Executive Government exercising regulation-making power.
It is the function of a court in determining rights and liabilities arising under Acts of Parliament, including criminal statutes, to interpret the legislation and to apply it to the facts of the case as found on the basis of the evidence before the court. In applying an Act of Parliament, a court will give effect to a law which reflects a policy which, at the time of enactment, was in all likelihood a policy propounded to the Parliament by the Executive Government. In so doing, a court is not enlisted by and does not act at the direction of the Executive. So much was accepted by senior counsel for the plaintiff. In the application of delegated legislation, which may reflect a current policy of the Executive Government, the same is true[70]. Contrary to the plaintiff's submissions in reply, the declaration of a criminal organisation by regulation does not amount to an impermissible direction to the courts to do anything. It creates a factum, in relation to an entity, which has consequences provided by law. The declaration of criminal organisations by regulation in this case does not give rise to the difficulty considered by the Court in South Australia v Totani[71], where a declaration of a criminal organisation mandated, upon application by the Commissioner of Police, a judicial control order against a member of such an organisation, which amounted to little more than rubber stamping an executive determination without any substantive judicial function.
[70]Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343 at 365 [44] per French CJ, 368 [58] per Hayne, Crennan, Kiefel and Bell JJ; [2012] HCA 58.
[71](2010) 242 CLR 1; [2010] HCA 39.
If the Parliament, or the Executive Government acting pursuant to statutory authority, designates an organisation as a criminal organisation, membership of which attracts penalties or disabilities in certain circumstances, it does not thereby intrude impermissibly into the judicial function. The determination of whether a person is a member of a criminal organisation and whether circumstances attracting a penalty or disability are established is left to the courts. So too, when raised as a defence, is the question whether the organisation in fact has as one of its purposes the purpose of engaging in, or conspiring to engage in, criminal activity.
There is a distinct question arising from the juxtaposition of three different bases for establishing that an entity is a criminal organisation in a prosecution for an offence against ss 60A, 60B or 60C of the Criminal Code. The first basis, that set out in par (a) of the definition, would require a determination by the trial court, in a prosecution for an offence against ss 60A, 60B or 60C, of whether the entity said to be a criminal organisation had the characteristics set out in par (a). Such a finding, as Hayne J points out in his Honour's Reasons[72], would preclude the defence that the entity "is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity."
[72]Reasons of Hayne J at [121].
To establish that an entity is a criminal organisation within the meaning of par (b) of the definition, it would suffice for the prosecution to prove that a declaration to that effect was made by the Supreme Court of Queensland under the CO Act. Proof of such a declaration made in earlier and different proceedings in the Supreme Court and not involving the accused would not prove anything more than the fact of the declaration. The consequence of proving the declaration is the legal characterisation of the relevant entity. Proof of the declaration would not preclude the accused, as a matter of law, from establishing the defence in proceedings under ss 60A or 60B (the definition in par (b) not being applicable to s 60C[73]).
[73]Criminal Code, s 60C(3), definition of "criminal organisation".
If the prosecution in a charge of an offence against ss 60A, 60B or 60C were to rely upon par (c) of the definition of "criminal organisation", it would have to do no more to establish the characterisation of the relevant entity than produce a regulation declaring the entity to be a criminal organisation. As with the proof of a declaration under the CO Act, evidence of the declaration by regulation would prove no more than the fact of the declaration and attract the legal characterisation of the relevant entity as a "criminal organisation". It would be open to the accused person to establish the defence.
If by hypothesis the definition of "criminal organisation" in s 1 of the Criminal Code were limited to that set out in par (c), it could not be said that the offence-creating provisions, requiring the existence of a criminal organisation as so defined, involved any impermissible intrusion by the Executive upon the judicial function or an enlistment of the court to do the bidding of the Executive, nor that it conferred upon the court a function that was incompatible with its institutional integrity. Nor could it be said, more generally, that the definition of "criminal organisation" in par (c), taken by itself, would, by reason of the function that it conferred upon the court or otherwise, be repugnant to or incompatible with the institutional integrity of the court. The juxtaposition of the definitions in pars (a), (b) and (c) does not alter that consequence. The common classification of entities as "criminal organisations" according to three different processes, one directly judicial, one indirectly judicial and one executive, is, in the end, a matter of labelling. They could have been designated respectively as "a criminal organisation", "a declared criminal organisation" and "a listed criminal organisation", each characterisation attracting the same proscriptions, set out in ss 60A, 60B and 60C, for participants in such entities.
The existence of alternative pathways to conviction, one of them based upon a factum determined by declaration under a regulation, does not impermissibly entangle judicial functions with those of the Executive Government. Although the nomenclature of "criminal organisation" and the outcomes are the same, the pathways are distinct and do not have any legally operative effect upon each other.
The plaintiff's challenge to the validity of ss 60A, 60B and 60C of the Criminal Code must fail.
The Liquor Act
Sections 173EB, 173EC and 173ED combine to prevent persons being on licensed premises while wearing or carrying an item of clothing or jewellery or an accessory that displays the name, club patch, insignia or logo of a declared criminal organisation. The prohibition extends to persons carrying an item of clothing or jewellery or an accessory displaying any image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or an association with, a declared criminal organisation[74]. The term "declared criminal organisation" is defined in s 173EA by reference to par (c) of the definition of "criminal organisation" in the Criminal Code.
[74]Liquor Act, s 173EA, definition of "prohibited item".
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.
HAYNE J. 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
As the plaintiff originally framed his proceedings, he challenged the validity of provisions of a number of Acts and regulations, and he founded those challenges on a number of different bases. The parties agreed on a special case to raise those issues but, before it came on for hearing, the plaintiff confined both the provisions which he attacked and the basis on which he founded the attack. The special case was amended accordingly.
It is necessary, therefore, to identify only those provisions which remain the subject of challenge. They are provisions of four Acts: the VLAD Act, the Criminal Code (Q), the Bail Act 1980 (Q) and the Liquor Act.
The plaintiff alleges that the whole of the VLAD Act is invalid. The VLAD Act requires[76] a court sentencing a "vicious lawless associate" for a "declared offence" to impose a sentence for the offence (without regard to the further punishment for which the VLAD Act provides) plus an additional sentence of 15 years' imprisonment and, if the offender held office in the relevant association, a still further additional sentence of 10 years' imprisonment. What is meant by a "vicious lawless associate" will be explained later in these reasons.
[76]s 7.
The plaintiff challenges the validity of several provisions[77] of the Criminal Code inserted or amended by the Disruption Act[78]. Put shortly, those provisions of the Criminal Code are of two kinds. Sections 60A, 60B and 60C create new offences. An element of each of those offences is that the offender is "a participant in a criminal organisation". The other provisions prescribe more severe punishment for persons convicted of certain offences if the offender is "a participant in a criminal organisation". More will be said about those provisions later in these reasons.
[77]ss 60A, 60B(1) and (2), 60C, 72(2), (3) and (4), 92A(4A), (4B) and (5), 320(2), (3) and (4) and 340(1A), (1B) and (3).
[78]ss 42‑46.
The provisions[79] of the Bail Act which the plaintiff challenges were also inserted by the Disruption Act[80]. They provide, among other things, that, where it is alleged that a person charged with an offence is, or has at any time been, a participant in a criminal organisation, bail must be refused unless the defendant shows cause why his or her detention is not justified.
[79]s 16(3A), (3B), (3C) and (3D).
[80]s 4. Sub‑sections (3A), (3B) and (3C) of s 16 of the Bail Act were later amended by the Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Q), s 7. The detail of that amendment need not be noticed.
The provisions[81] of the Liquor Act which the plaintiff challenges were inserted by the Tattoo Parlours Act[82]. They make it an offence to enter or remain in licensed premises wearing or carrying a "prohibited item" and oblige licensees and others to exclude from licensed premises persons wearing or carrying a "prohibited item". A "prohibited item" is defined[83] as an item of clothing or jewellery or an accessory that displays the name of "a declared criminal organisation", "the club patch, insignia or logo" of such an organisation, or any writing (or other symbol or image) that indicates membership of, or association with, such an organisation.
[81]ss 173EB, 173EC and 173ED.
[82]s 75.
[83]s 173EA.
A legislative scheme?
The Explanatory Notes to each of the Bills that became the VLAD Act and the Disruption Act referred[84] to "a comprehensive package of legislative reforms, contained in three Bills". The Tattoo Parlours Bill 2013, introduced into the Queensland Parliament on the same day, was the third of the Bills which formed the "comprehensive package".
[84]Queensland, Vicious Lawless Association Disestablishment Bill 2013, Explanatory Notes at 1; Queensland, Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, Explanatory Notes at 1.
The Explanatory Notes to the Bills that became the VLAD Act and the Disruption Act said[85] each Bill was directed at "criminal gangs". The Explanatory Notes to the Tattoo Parlours Bill said[86] the Bill was directed at "criminal organisations, including criminal motor cycle gangs and their associates". In a Ministerial Statement, the Premier said[87] that the three Bills were "not designed to just contain or manage [criminal motorcycle gangs]; they [were] designed to destroy them".
[85]Queensland, Vicious Lawless Association Disestablishment Bill 2013, Explanatory Notes at 1; Queensland, Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, Explanatory Notes at 1.
[86]Queensland, Tattoo Parlours Bill 2013, Explanatory Notes at 1.
[87]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 15 October 2013 at 3114.

In a case in which the accused raises the defence, the court tries an issue as to the organisation's purpose or purposes. However, it does not follow, in the event of conviction, that the court is satisfied that the organisation has as one of its purposes engaging in or supporting criminal activity. The failure to establish the probability that an organisation does not have any criminal purpose is no evidence that it has such a purpose or purposes.
The special case records that, at the date of the enactment of the challenged legislation, there were 13 "criminal motorcycle gangs" in Queensland. Parliament on that date chose to declare 26 motorcycle clubs to be "criminal organisations". The Parliament's selection of the pejorative descriptor "criminal organisation" (and the provision of the defence) should not obscure that the court trying a new Code offence based on the accused's participation in an organisation declared under the Regulation to be a "criminal organisation" is not required to be satisfied that the organisation in fact has any criminal purpose or purposes. The plaintiff's complaint that in such a case "there has never been a judicial determination of the issue of the criminality of the organisation"[268] is not to the point. Liability does not depend upon the "criminality of the organisation", much less on proof that the accused is "a participant in organised crime". Liability arises in consequence of the choice to participate in an organisation that the Parliament has declared to be a "criminal organisation" in the circumstances proscribed in the new Code offences.
[268][2014] HCATrans 187 at lines 512-513.
Subject to the qualification that the Parliament of a State may not enact a law which subjects a court in reality or appearance to direction from the executive as to the content of its judicial decisions[269], the Parliament may select whatever factum that it wishes to trigger a consequence that it determines[270]. Legislative declaration of a state of affairs forming an element of liability does not, without more, amount to an impermissible direction to the court as to the content of its decision. It is a common feature of legislation criminalising the possession and supply of prohibited drugs. Here, the Parliament has chosen to declare certain entities to be "criminal organisations" and to make participation in those entities an element of liability in the new Code offences. On the trial of a new Code offence, the court performs its ordinary functions in the determination of whether guilt has been established.
[269]South Australia v Totani (2010) 242 CLR 1 at 49 [71] per French CJ.
[270]Baker v The Queen (2004) 223 CLR 513 at 532 [43] per McHugh, Gummow, Hayne and Heydon JJ; [2004] HCA 45.
Queensland accepts that, had the plaintiff attended the hearing of the special case knowing that two or more other members of the HAMC were also in attendance at the hearing, he might have been liable to conviction for the s 60A(1) offence. The acknowledgment of the singular reach of the provision does not engage the limitation on the legislative power of the Parliament of Queensland that arises under the Kable principle. And, as the joint reasons note, the plaintiff does not assert any other basis of constitutional infirmity.
The plaintiff's submissions do not address the provisions of the Liquor Act in terms. Correctly, Queensland submits that ss 173EB-173ED of that Act simply create offences of general application. The court on the trial of these offences, as on the trial of the new Code offences, performs its ordinary functions in the determination of criminal guilt.
For these reasons, the questions of law should be answered as follows:
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), ss 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), ss 173EB-173ED) is invalid?
Answer:By reason of the answer to question 2, the plaintiff's claims for that declaratory relief do not give rise to a "matter" within the meaning of s 76(i) of the Constitution or s 30(a) of the Judiciary Act 1903 (Cth) and accordingly the plaintiff has no standing to seek that relief.
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), ss 60A, 60B(1) and 60C, and Liquor Act 1992 (Q), ss 173EB-173ED) hypothetical?
Answer:Yes.
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:No.
4.Who should pay the costs of the special case?
Answer:The plaintiff.