Kuczborski v. The State of Queensland
[2014] HCATrans 187
[2014] HCATrans 187
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B14 of 2014
B e t w e e n -
STEFAN KUCZBORSKI
Plaintiff
and
THE STATE OF QUEENSLAND
Defendant
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON TUESDAY, 2 SEPTEMBER 2014, AT 10.15 AM
Copyright in the High Court of Australia
MR K.C. FLEMING, QC: If the Court pleases, I appear with MR W. BAFFSKY and MR S. ROBERTSON for the plaintiff. (instructed by Irish Bentley Lawyers)
MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MR A.J. MACSPORRAN, QC, MR G.J.D. DEL VILLAR and MR C.M. TAM. (instructed by Crown Law (Qld))
MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MR C.L LENEHAN for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.E. DAVIDSON, for the Attorney‑General of New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))
MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MS A.K. CHONG‑FONG, for the Attorney‑General for the Northern Territory intervening. (instructed by Solicitor for the Northern Territory)
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, for the Attorney‑General for South Australia intervening. (instructed by Crown Solicitor (SA))
MR S.G.E. McGLEISH, SC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with my learned friend, MR C.P. YOUNG, for the Attorney‑General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia: If it please the Court, I appear with my learned friend, MR A.J. SEFTON, for the Attorney‑General for Western Australia intervening. (instructed by State Solicitor (WA))
FRENCH CJ: Yes, Mr Fleming.
MR FLEMING: Thank you, your Honours. If the Court pleases, Queensland has had for some little time the means to declare an organisation a criminal organisation in a matter tested in this Court and found not to offend the Kable principle. That was in the Assistant Commissioner of Condon v Pompano, to which we will come in time. That was determined but a year ago. That process, according to Pompano, involved the scrutiny of a Supreme Court judge of intelligence collected by law enforcement agents before such a declaration could be made.
However, in this matter it is our submission that for whatever reason, Queensland has sought to circumvent that procedure by the suite of amendments to which we will be taking your Honours which are the subject of this action. The net effect of that suite of amendments is that the determination of criminality has been shielded from the scrutiny of the courts and it has been imposed by Parliament and the Executive.
Your Honours, the vice about which we complain is not that Queensland sought a more expeditious route to criminality, but that the route chosen by limiting the role of the courts in the way we will describe is extraordinary and substantially impairs the institutional integrity of the courts in Queensland.
May we take your Honours to a clear and simple illustration of what we speak? Your Honours, behind our written argument are all of the necessary documents to which we will be referring – the legislative documents to which we will be referring in this argument. May I take your Honours to our submissions and behind that at A29 your Honours will find there the offence of affray - unremarkable, in paragraph (1). Paragraphs (2), (3) and (4) were added by the suite of amendments about which we speak. Your Honours will note paragraph (2):
is a participant in a criminal organisation, the offence is punishable –
in a manner there set out. Otherwise, if your Honours note subsection (1):
Maximum penalty—1 year’s imprisonment.
In the ordinary course of events, that is the maximum penalty. When we come to subsection (2), the maximum penalty is “7 years imprisonment”, but there is a mandatory:
6 months imprisonment served wholly in a corrective services facility –
If your Honours then go to subsection (3):
For an offence defined in subsection (1) alleged to have been committed with the circumstance of aggravation mentioned in subsection (2) –
and, of course, the circumstance of aggravation alleged is that the person is a participant in a criminal organisation; nothing to do with the commission of the offence itself. Subsection (4):
In this section—participant, in a criminal organisation –
refers back to section 60A, to which we will come in time.
BELL J: What, if any, is the point of distinction between the different penalty applicable in the case of a participant in a criminal organisation to an offence that provides for a more severe penalty in the case of a person who has previously been convicted of a particular class of offence?
MR FLEMING: Your Honour, may we answer it this way? In our submission, that would fall under the first subsection where the maximum penalty is one year’s imprisonment and it would be taken into account at that point.
BELL J: But, no, the matter that I am directing your attention to is if the legislature provides an offence and provides with respect to that offence for a more severe penalty in the case of a person who has previously been convicted of a class of offence, what is the distinction that you draw between participation in a criminal organisation under this scheme and the scheme to which I direct your attention, which is a rather conventional approach to the specification of criminal offences and circumstances of aggravation?
MR FLEMING: Yes, your Honours, in those circumstances, one would properly be characterised as a circumstance of aggravation, whereas in this instance it cannot be because of the manner in which it is imposed.
HAYNE J: Well, is that right? De Simoni would require that the circumstance of aggravation mentioned in 72(2) is pleaded in the indictment, would it not?
MR FLEMING: Yes, your Honour.
HAYNE J: It is a circumstance of aggravation within the meaning of the Code. Is that right?
MR FLEMING: Yes, your Honour.
HAYNE J: Because it exposes you to a higher penalty.
MR FLEMING: Yes.
HAYNE J: What is the distinction then that you are drawing?
MR FLEMING: Your Honour, the distinction we draw is the manner in which the imposition of criminality is made in subsection (2), and we have to come back to the fuller argument about the imposition of that criminality by the Executive as distinct from it being a determination perhaps found by a court and, if I can go back to what your Honour Justice Bell asked, a previous offence will be a conviction determined by a court, whereas this circumstance of aggravation is something which is imposed by the Executive as a result of it being a participant in a criminal organisation. The criminal organisation is something which is determined by the Executive or by Parliament.
CRENNAN J: So you are making a distinction along the lines that this aggravating feature is not like an orthodox aggravating feature which may be provided for in a sentencing provision ‑ ‑ ‑
MR FLEMING: Yes.
CRENNAN J: ‑ ‑ ‑ but the aggravation, if you like, will be determined as part of the sentencing process, that there might be curial findings made in relation to it, and so on? Is that what you mean?
MR FLEMING: Yes, your Honour.
HAYNE J: Well, is that right, because if you have to plead it in the indictment, have not the jury got to return a verdict on it? That is, is not the jury required to pass upon the question of whether the circumstance of aggravation is made good?
MR FLEMING: Yes, but in that case there will still be a determination of that fact by a judicial process, albeit jury, whereas in this instance there is no determination at all by a court or by a jury of that fact.
BELL J: There is a determination that the person is a participant in the criminal organisation; what is proscribed is the criminal organisation.
MR FLEMING: Yes.
BELL J: But there is a factual determination of participation.
MR FLEMING: I accept what your Honour says. Your Honour, the simple proposition is to be liable for the additional penalty, there is no requirement for there to be any connection whatsoever between participation and the offence. As a result, any person involved in an affray who is a participant in a criminal organisation must receive a sentence of six months without parole, even if his or her offence was objectively or subjectively less serious than a non‑criminal organisation participant. So there is that imbalance where somebody who might have started the affray might receive a sentence of a maximum of one year, whereas a participant who is a participant in a criminal organisation may well receive a substantially greater sentence than that, having to serve six months as a minimum of that sentence.
Your Honours, can we go then to what a “participant” means? It is broadly defined. Can we take your Honours to A28? “Participant’ refers back to section 60A at the top of A28. Your Honours will note in subsection (3) there is a:
member, of an organisation –
and then a:
participant, in a criminal organisation –
a very comprehensive definition of what it is to be a participant. If your Honours go to (d) of the definition:
a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way –
and (e):
a person who takes part in the affairs of the organisation in any other way –
There is a suggestion by Queensland at 102 of their written submissions that somehow or another there is a commonality about a person who attends:
‘more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way –
a person who takes part in the affairs of the organisation in any other way. But interestingly, it does not include lawyers, as your Honours will note, at the bottom of that.
FRENCH CJ: So you say a participant who falls within subparagraph (d), is a participant like?
MR FLEMING: Sorry, your Honour, resay.
FRENCH CJ: Once you have attended more than one meeting ‑ ‑ ‑
MR FLEMING: Yes.
FRENCH CJ: ‑ ‑ ‑of persons who participate in the affairs of the organisation in any way, that historic event marks you as a participant for the purposes of the statute thereafter.
MR FLEMING: Yes, your Honour.
FRENCH CJ: Regardless of any ongoing connection with the organisation.
MR FLEMING: Yes. It is so comprehensive:
1 meeting or gathering of persons who participate –
and that is indeed – then who takes part in the affairs of the organisation “in any way”. They are the most comprehensive statements of participation. Our learned friends from Queensland say that the gatherings referred to there must be connected with the affairs of the association. We submit that that construction is not available on the words of the section particularly in light of (e):
a person who takes part in the affairs of the organisation in any other way.
FRENCH CJ: Precisely, how does that position on the construction of (d) feed into your Kable argument?
MR FLEMING: Because now the participant is determined by the Executive or by Parliament. It infringes Kable because it imposes itself upon a court.
CRENNAN J: Is the point this, that given the fact that the aggravating circumstances will appear in the indictment and be part of the burden of what is sought to be proved, you are saying, are you not – or you are complaining, are you not – there is no necessity to prove any direct or even indirect relationship between being a participant and the affray. Is that not your Kable point?
MR FLEMING: Exactly. There is no requirement for any connection between participation of the offence. The offence can be committed without any regard whatsoever to the affairs of the organisation. Yet it still has this consequence of imposing a regime on a court. Your Honours, can we then take you to the definition of “criminal organisation” which is at A17? Your Honours will see there “Participants in criminal organisation being knowingly present in public places” and there, at the bottom of that page, is the participant. At A17 -
criminal organisation means–
(a)an organisation of 3 or more persons –
(i)who have as their purpose, or 1 of their purposes, engaging in . . . or otherwise conspiring to engage in –
and then (ii) ‑ ‑ ‑
FRENCH CJ: Well, reliance upon that definition would require facts to be found by a court, would it not?
MR FLEMING: Yes, your Honour.
FRENCH CJ: Similarly, in (b).
MR FLEMING: Yes.
FRENCH CJ: I suppose if a declaration has been made, you would have to find that there had been ‑ ‑ ‑
MR FLEMING: Yes, but that is the only thing the Court needs to find.
FRENCH CJ: But then (c) – that would simply arise on the regulation.
MR FLEMING: Yes, it does. The criminal organisation under the Criminal Organisation Act – that was what was discussed in Pompano and found to be appropriate in (b) and then (c):
an entity declared under a regulation to be a criminal organisation.
It is that regulation to which we want to bring your Honours’ attention.
FRENCH CJ: Before you go to that regulation, section 708A which has, I think, been inserted in the Code, sets out criteria for recommending an entity be declared a criminal organisation. That sets out the framework within which such regulations are to be made?
MR FLEMING: Yes, your Honour.
FRENCH CJ: Such declarations are to be made – I should say ‑ ‑ ‑
MR FLEMING: Within the framework of the regulations, yes. Interestingly, though, the first regulation was the result of the Act itself. The Act itself interestingly declared the criminal organisations and they are the ones to be found at page A22.
FRENCH CJ: This is Part 8 of the Act?
MR FLEMING: Yes, your Honour, yes. If your Honour goes over the page, the first regulation was in fact part of the Act itself. Then it became a regulation on the passing of the Act. Your Honours can see in section 70(2) – or subsection (1), Schedule 1 has the effect to make the Criminal Code – set out in the schedule as a regulation of the Criminal Code and then to remove any doubt on the commencement of Schedule 1. It stops being a provision of this Act and becomes a regulation. It is an odd procedure and it may be that it has something to do with judicial review of some sort. It has not been the subject of any scrutiny anywhere.
Your Honour, in simple terms, a person is subject to additional penalties simply by reason of being a participant in an organisation and that is of the legislature or the Executive’s choosing whether or not there is any connection between the participation of the offence. Your Honours, could we then move to the concept of equal justice. We say that this result offends any meaningful conception of justice. If people participate in identical circumstances then there should be an identical outcome in cases that are relevantly identical. We take your Honours to Wong.
HAYNE J: Well, before you do, the whole debate then becomes what is meant by “relevantly identical”, does it not?
MR FLEMING: Sorry, your Honour.
HAYNE J: The whole debate then shifts to what is relevantly identical.
MR FLEMING: Yes, your Honour.
HAYNE J: Well, what are we going to get out of Wong that bears upon that?
MR FLEMING: Well, that proposition, your Honour – identity of outcome in cases that are relevantly identical.
HAYNE J: And, the legislature here identifies a difference? Why do you say that that is not a permissible distinction? The legislature says being a participant in a criminal organisation has a consequence.
MR FLEMING: Yes.
HAYNE J: What is the underlying proposition that you advance which says that is not a relevant difference?
MR FLEMING: We come back to the proposition, your Honour, that there is no requirement for any connection between participation and the offence that is charged or proven.
FRENCH CJ: Well, is that about inequality or is it really about rationality of the legislation and you are inviting the Court to make some kind of judgment about that in lieu of the legislature?
MR FLEMING: Your Honour, we would submit it is more to do with equal treatment of people in equal circumstances to produce that equality.
HAYNE J: But this is a personal – or a characteristic personal to the accused? Is that right?
MR FLEMING: Yes, your Honour.
HAYNE J: You have to advance a proposition, do you not, which says that this particular personal characteristic of the accused – what – is not? I think you may have to go so far as to say cannot be fastened upon by the legislature as a relevant difference. Is that right?
MR FLEMING: Yes, your Honour.
HAYNE J: Is it cannot be fastened upon?
MR FLEMING: Yes. We say it cannot be fastened upon because ‑ ‑ ‑
HAYNE J: Then what is the proposition that underpins the “cannot”?
MR FLEMING: Your Honour, ultimately it does not go to the seriousness of the offence. The offence is committed. There is an abstract concept imposed by the Executive upon a participant. In a criminal organisation there has never been a determination of that criminality by any court. They simply say this – you must take it into account even though nobody has ever determined the criminality involved in being a participant in a criminal organisation.
HAYNE J: That seems to be a proposition about the characteristics of the organisation. I understand you fasten upon the observation that a criminal organisation can be a declared organisation. We look at the criteria for declaration. There is a list of things that the Minister may take to account followed by that grab bag of any other thing that the Minister considers relevant. But, in light of the defence prescribed, where the accused has to prove – presumably on the balance of probabilities – that the organisation concerned does not have as one of its purposes, et cetera, how is the argument holding together at that point?
MR FLEMING: Your Honour, that becomes a defence rather than part of the offence. The onus is actually reversed upon a participant to prove that the organisation is not, effectively, a criminal organisation. That is something that, again, is imposed. It goes no way to describing the seriousness of the offence with which they are charged.
CRENNAN J: Are you saying it is not like a repeat offender provision, for argument sake, which requires a more severe punishment because of prior convictions in relation to the same offence.
MR FLEMING: Yes, your Honour.
CRENNAN J: Is that the distinction you are making?
MR FLEMING: Precisely because there has been determination in respect of those prior offences. But, here, there has never been a judicial determination. It is criminality which is imposed by the legislature saying that you are a participant in a criminal organisation. The criminal organisation is by regulation; the participant is by definition. So, in our submission, the real offence is that there has never been a determination of those issues of criminality. Can we take your Honours to South Australia v Totani, which is in volume 4 and tab 46?
HAYNE J: What page of the bundle?
MR FLEMING: Page 2070.
HAYNE J: Thanks.
MR FLEMING: If the Court pleases. Can we go to page 90, paragraph 232? It is at page 2159 of the bundle, and it is your Honour Justice Hayne speaking of guilt that is “personal and individual”, and down through, right to the end of your Honour’s judgment at paragraph 236.
HAYNE J: Other than flattery, what do we get out of it?
MR FLEMING: That guilt - the guilt is personal guilt, your Honour, rather than one imposed by the legislature, and we can illustrate that by going back to the affray. Two people or more in the affray - I should say more - one not a participant in a criminal organisation and the other a participant, one is judged upon their guilt in that circumstance; the other is not. The other is judged first in respect of the affray, and then second, in respect of guilt imposed by the legislature or by the Executive and, in our submission, your Honour, that offends the Kable principle.
It is our submission that the departure from such a fundamental notion of equal justice is as fundamental as the departures in Wainohu and International Finance Trust, one being failure to give reasons and the other being the making of orders ex parte and then with some difficulty undoing them. This Court found in both of those instances that they offended the Kable principle. Your Honours, could we then go please to other sections?
FRENCH CJ: People are subjected to different sentences because of relevant differences. That was said in Green. To impose different sentences ‑ ‑ ‑
MR FLEMING: Yes.
FRENCH CJ: ‑ ‑ ‑ in respect of the same offence ‑ ‑ ‑
FRENCH CJ: Yes.
FRENCH CJ: ‑ ‑ ‑ on different people because of relevant differences ‑ ‑ ‑
MR FLEMING: Yes.
FRENCH CJ: ‑ ‑ ‑ does not offend any principle of equality before the law or equal justice, does it?
MR FLEMING: No, your Honour.
FRENCH CJ: Well, what is your complaint? I just want to get to a precise understanding. What is your complaint about the attachment of the higher sense to this circumstance of aggravation? Is it simply that it is not a relevant difference and somehow that feeds into a constitutional limitation on what functions can be conferred on the Court?
MR FLEMING: Yes, but, your Honour, it does not go to the seriousness of the offence.
FRENCH CJ: Well, there you are saying it is not a relevant factor.
MR FLEMING: Yes, your Honour.
HAYNE J: But any sentencing exercise looks at the circumstances of the offending and the circumstances of the offender. Now, the legislature says some offenders, those whom the legislature has identified in this way, are to be treated differently. What is the underlying idea that - I know you say equality before the law, but what is the underlying idea that says that this criterion of difference, personal to the offender, is impermissible?
MR FLEMING: It is impermissible because - to be considered by a court, because it has been imposed without there having been any determination by a court of that fact. If there was - for example, if there were previous convictions, that is established by a court. But here, there has never been a judicial determination of the issue of the criminality of the organisation, and that is the long and the short of our argument in the end, your Honours.
BELL J: But it does not depend upon the criminality of the organisation, as you have put it, but upon the choice to participate in an organisation that is declared by regulation to be a criminal organisation upon which consequences fasten.
MR FLEMING: Yes, the person chooses to participate, but it is the criminality of the organisation which we say is the offensive part and the sentencing on that basis takes into account participation, but it also must take into account participation in a criminal organisation.
GAGELER J: So, if you look to the definition of “criminal organisation”, it has three alternative limbs. Do I take it that your challenge, based on this notion of equality before the law, has got nothing to say about the first limb? The first limb, if it was to apply ‑ ‑ ‑
MR FLEMING: That is so, your Honour.
GAGELER J: ‑ ‑ ‑ would require a judicial determination.
MR FLEMING: Yes.
GAGELER J: Does it have anything to say about the second limb?
MR FLEMING: No, because that is the Pompano procedure. There is the third, an entity declared under a regulation.
GAGELER J: Is the vice then the Executive determination?
MR FLEMING: Of that criminality, yes, your Honour.
GAGELER J: How does that vice apply to the Hells Angels which is declared, not by the Executive, but by a schedule to the Act?
MR FLEMING: Yes. We say then, it is a conviction by the legislature, rather than the Executive. It has simply attempted to remove it one step, for reasons which may be quite difficult to divine but, nevertheless, the legislature has determined that the entities are declared to be criminal organisations. Again, there has been no judicial process making that determination of criminality. Your Honours, can we go to section 320 - that is at A31 – “Grievous bodily harm”. Subsection (2) was added in:
If the offender is a participant in a criminal organisation ‑
Then it is defined in (3) as “the circumstance of aggravation”, and then in (4), the participant refers back to the criminal organisation definition in section 60A. Section 340 is in respect of serious assaults. We submit that has the same vice attached to it. Section 92A is at page A30. It is “Misconduct in relation to public office”. Again, if a person was “a participant in a criminal organisation”, in subsection (4A), your Honours will note the increased penalties as a result of being a participant in a criminal organisation. Can we then go to the Bail Act which is at A26?
FRENCH CJ: That group of provisions all raise the exactly the same point that you seek to make ‑ ‑ ‑
MR FLEMING: Yes, your Honour.
FRENCH CJ: ‑ ‑ ‑ in relation to the circumstance of aggravation that is participation in a criminal organisation.
MR FLEMING: Yes, your Honour. The Bail Act ‑ ‑ ‑
HAYNE J: Again, sorry, can I just delay you a moment further? Your reference to absence of judicial determination about criminality of the organisation has of course to grapple at some point in the argument with the availability of the defence. Let us for the moment leave aside the question of alteration of onus of proof. Let us take the defence as informing the content that relevantly is to be given to criminal organisation.
The offences in 60A, 60B, 60C, 72, et cetera, seem to be offences where the aggravating circumstance is being a participant in an organisation, a purpose of which is engaging in, or conspiring to engage in, criminal activity. That is, if you like, the inverse, reverse, of the defence found in 72(3). I understood you to be saying that because the affray, to take a 72 offence, may be unconnected with being a participant in a criminal organisation, there was an infringement of equality before the law.
MR FLEMING: Yes, your Honour.
HAYNE J: Is that right?
MR FLEMING: That is so, your Honour.
HAYNE J: That is to say, I think, that by contrast with the VLAD Act, these provisions of the Code with which we have been presently concerned, do not contain the provision in section 5(1)(c) of the VLAD Act ‑ ‑ ‑
MR FLEMING: No.
HAYNE J: ‑ ‑ ‑ that the offender “did or omitted to do the act that constitutes” – I paraphrase, the relevant act – “for the purposes of, or in the course of participating in the affairs of, the relevant association”.
MR FLEMING: Yes.
HAYNE J: Well, which horn of the dilemma are we on now, Mr Fleming? Do you say that these provisions of the Code would be supportable if they had an equivalent to 5(1)(c) of the VLAD Act?
MR FLEMING: Your Honour, in 5(1)(c) there is a specific connection between the Act and the organisation. In all the instances that we have given, there is no specific connection between the criminal act and the defence.
HAYNE J: The absence of that connection, you say, is constitutionally significant?
MR FLEMING: Yes, your Honour, we do.
HAYNE J: The constitutional significance is, at the moment, expressed generally as discordance with equality before the law. Do I presently capture where the argument has go to?
MR FLEMING: Yes.
HAYNE J: Yes.
FRENCH CJ: On the basis that it treats people differently in respect of the same offence ‑ ‑ ‑
MR FLEMING: Yes.
FRENCH CJ: ‑ ‑ ‑by reference to an irrelevant difference.
MR FLEMING: Yes, your Honour.
FRENCH CJ: Underlying the whole proposition is the irrelevance of the attribute which attracts the additional sentence.
MR FLEMING: Yes. The seriousness of the penalty has nothing to do in the end, or has little to do with the crime which has been committed. It has more to do with what we say is the irrelevant consideration of being a member of a criminal organisation.
KIEFEL J: These amendments to the Criminal Code use the attribute in two ways. One is a circumstance of aggravation of an offence and one is as an element of the offence. Do you draw any distinction between the two in relation to the operation of how the attribute is applied?
MR FLEMING: No, not in the end, your Honour, no. Could we then, your Honours, go to the VLAD Act or – I am sorry, the ‑ ‑ ‑
KEANE J: Mr Fleming, if a member of the mafia went into a cake shop to buy some cakes and became enraged with the proprietor and shot him, it has nothing to do with his membership of the mafia. But when that person comes to be sentenced, would it not be relevant to considerations of personal and general deterrence that the offender was a member of the mafia?
MR FLEMING: It may do, your Honour, but it depends on how that determination has been made. Who is going to determine that membership of the mafia?
KEANE J: Well, it has to be proved ‑ ‑ ‑
MR FLEMING: I am sorry, your Honour, I did not mean to put the question to your Honour.
KEANE J: It has to be proved, and the question then is does it make a difference to your argument? Your argument seems to be saying you have to look at the circumstances of the offending and that has to be linked to membership. But if the club takes a broader view of sentencing and looks at considerations and deterrence, personal and general, why is it not a relevant difference? Why is not the membership a relevant difference between that case and the case of an ordinary citizen who happens to behave badly?
MR FLEMING: Your Honour, it will depend upon how that determination is made in the end.
KEANE J: The determination of the criminality of the organisation?
MR FLEMING: Yes, your Honour.
KEANE J: But the fact that there was no participation in the membership of the organisation is not decisive, is it, in relation to the individual offence?
MR FLEMING: No, your Honour.
KEANE J: Because there are considerations relevant to sentence that apply in the case of mafia members that do not apply to casual deviants.
MR FLEMING: But, your Honour, the amendments here have not gone that far. They have actually incorporated it into the legislation by a determination by the legislature or the Executive that it is a criminal organisation.
KEANE J: That is a different point to the one I was just talking about.
MR FLEMING: That is the only distinction I can make between what your Honour was saying to me ‑ ‑ ‑
KEANE J: Just in relation to that, if the criminal nature of the organisation has to be proved, if the Crown were to actually prove as a fact the subparagraph (a) requirement and were also to rely upon a certificate of the declaration, would the conviction nevertheless be bad because the Act was invalid, because it has provision for prescription?
MR FLEMING: We would have to say yes because of that aspect of it that it has relied upon a determination which has been made by other than a judicial process.
KEANE J: Even though in the particular example I have given you, proof of the fact of the criminality of the organisation was established by evidence?
MR FLEMING: If the criminality itself was part of the judicial proof, then we would have less to complain about.
KEANE J: But you would still say that the whole Act is invalid?
MR FLEMING: Yes. Our fundamental attack is against the suite of changes that have been brought into the Act is invalid.
FRENCH CJ: But with the Code amendments – they talk about affray and so forth – the accused can assert, as it were, the irrelevance of the connection with the particular organisation by invoking the defence, and there is then a judicial determination of that, is there not, albeit with a reverse onus?
MR FLEMING: But the offence has nothing to do with the participation in the criminal organisation ‑ ‑ ‑
FRENCH CJ: You are talking about criminality of the organisation, though. That is something which can be put in issue, using rather loose language.
MR FLEMING: There remains that problem, in our respectful submission, your Honours, that the criminality is imposed. The reversal of the onus is a difficult question because, for example, in 60C at A29:
It is a defence to a charge of an offence against subsection (1) 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.
In terms of practical justice, which has been the subject of comment by your Honours, how does one prove that, especially if one is a participant effectively on the fringe? The reversal of the onus works a practical injustice against an accused. They have to meet an allegation effectively that it is a criminal organisation. How can a person on the periphery, for example, who has participated by going to a meeting or something like that, prove that the controlling mind and will of the organisation – whichever that might be, because the organisation is defined very broadly – how can a person possibly meet that standard of proof?
BELL J: But are you not conflating two ideas there? When you talk about the person who has attended on one occasion a meeting of the organisation, you invoke ideas of a lack of connection between that person and what you keep describing as the criminality of the organisation.
MR FLEMING: Yes.
BELL J: The point with respect to the defence is that if, by regulation, an organisation is prescribed as a criminal organisation, a defendant may put that in issue, albeit subject to a reverse onus, but there is nothing unusual about that. One can put in issue the so‑called criminality of the organisation, Mr Fleming.
MR FLEMING: Yes.
BELL J: That seems to take away that part of your argument that depends upon some suggested constitutional infirmity about the declaration of an organisation as a criminal organisation underpinning a circumstance of aggravation.
MR FLEMING: Your Honour, maybe – this is the distinguishing feature from Totani, that somehow or another there is appended somewhere the question of the criminality of the organisation.
CRENNAN J: But the “somehow or other” and the “maybes” and so on in the formulations which you are advancing rather highlight, do they not, the hypothetical nature of the plaintiff’s case?
MR FLEMING: Sorry, your Honour, the ‑ ‑ ‑
CRENNAN J: The hypothetical nature of the plaintiff’s case in respect of this issue, because if we had a set of facts, it would be much easier to deal with some of the matters which you are putting. As I say, it is all a matter of “somehow” or “maybe” and all those sort of provisional contingent formulations do make it rather difficult to grasp with whatever is the gravamen of your point precisely.
MR FLEMING: We understand what your Honour is saying about that. What we do have, though, is a plaintiff who is a member of a club and there is no allegation that he has been charged with serious offences, except for something in 2011, and he is not a criminal. That is the interesting part about this. He is not a criminal, and yet he too is branded as a participant in a criminal organisation and now has to disprove that the organisation is a criminal organisation. That raises an almost impossible task, and it works a practical injustice on someone such as the plaintiff here, or any other person who is involved in an organisation.
GAGELER J: Well, if he commits an offence, if he is charged, and if the Crown relies on paragraph (c) of the definition of “criminal organisation”.
MR FLEMING: Yes, yes.
KEANE J: If all that happens, and all the Crown relies on is paragraph (c) of the certificate of the declaration, then one can imagine speculating, as one necessarily has to in the absence of any facts, that he might give evidence to the effect that he had only ever attended one meeting and all that people talked about were their bikes. If all the Crown was relying on was the certificate, he would be acquitted.
MR FLEMING: We do not accept that, your Honour.
KEANE J: Well, if the only actual evidence of the activities of the association is the evidence from the accused who speaks to his involvement and what that involvement was, then the only evidence before the court will be that evidence. If that evidence is not consistent, if that evidence is inconsistent with the organisation in which he has participated being a criminal organisation, then that will displace the effect of the certificate.
MR FLEMING: It may do, your Honour, in a particular case.
KEANE J: Does this not come back to Justice Crennan’s question to you, that we are really talking about what may be and it is a problem in terms of the hypotheticality of the case you are presenting?
MR FLEMING: Yes, your Honour, we accept that, but we do have one person who is a member of Hells Angels, and he is the person that he is. He has not been charged, so he is not within the system, and we note our learned friend’s arguments about standing and hypothetical situations and so on.
BELL J: Your point, Mr Fleming, is even if he went to one meeting where they only chatted about raising money for the children’s hospital, it would be incumbent on him to establish upon the balance of probabilities that the organisation, Hells Angels, did not have, as one of its purposes, the purpose of engaging in or conspiring to engage in criminal activity?
MR FLEMING: Yes, your Honour, yes. How that works out in practice in the particular case, we cannot address, but that is the general proposition.
Your Honours, could we turn then to the VLAD Act, this is at A6 behind our outline, or the sentencing procedures. Your Honours will note that “A court sentencing a vicious lawless associate” must impose significantly higher sentences, and subsection (2), it:
(a)must not be mitigated or reduced under any other Act or law; and
(b)must be ordered to be served cumulatively with the base sentence imposed.
Could we go back to the definitions? At page A4, “association” means “a corporation”, and your Honours can see that there is a very wide definition of “association”:
any other group of 3 or more persons by whatever name called, whether associated formally or informally –
and so on.
HAYNE J: That seems to encompass every three member conspiracy.
MR FLEMING: Yes, your Honour. It also encompasses every type of organisation because the VLAD Act ‑ ‑ ‑
HAYNE J: Forget organisations, I am just talking about every three member conspiracy which are, shall we say, relatively common or garden events in the criminal courts.
MR FLEMING: Yes, your Honour, we accept that, but, it also captures every association of every sort. Now, the Act does not create any offence and it does not define “vicious, lawless”. It defines “association”. So in respect of this Act, when there is a proceeding in respect of it, the determination has been made or there is a veil over a procedure if there are three or more people involved, which leaves it susceptible to this allegation of it being a vicious and lawless – so it could apply to any organisation at all. It could apply to the Beef Steak and Burgundy Club, it could apply to the Australian Bar Association or the Australian Medical Association.
KIEFEL J: Well, how does that affect your argument for equality then, equality of treatment? I mean, you are in a different ballpark with this Act, are you not, than from one which identifies the criminal organisation under the Criminal Code?
MR FLEMING: Yes, we are indeed.
KIEFEL J: So, the problem here is it is too wide, the other one was too directed?
MR FLEMING: Yes, it is too wide and ‑ ‑ ‑
KIEFEL J: So, how does your argument alter to accommodate this?
MR FLEMING: Well, your Honour, it catches all sorts of people who may in fact have been a simple participant unwittingly. Can we take your Honours to our ‑ ‑ ‑
HAYNE J: Well, participant unwittingly is little difficult in the face of 5(1)(c), is it not?
MR FLEMING: Yes. It has got to be a declared offence and there is a list of those in (a).
HAYNE J:
did or omitted to do the act . . . for the purposes of, or in the course of participating in the affairs of, the relevant association.
That is – I think the word “unwitting” is perhaps stretching a point a little.
MR FLEMING: Well, can we go to (c), your Honour? Our learned friends for the Queensland Crown say that “for the purposes of” and “in the course of participating in the affairs” are one and the same. That, with respect, cannot be because there is a disjunctive “or” there for a start. So, one can understand there could be an act which is done for the purposes of a vicious lawless association, but if one in the course of participating in the affairs of ‑ ‑ ‑
FRENCH CJ: There is no such statutory concept as a “vicious lawless association”, is there?
MR FLEMING: No, your Honour, there is not.
FRENCH CJ: It is just a “relevant association” and a designation attaches to a member or a participant who is charged with or commits a declared offence in those circumstances.
MR FLEMING: Yes. That is precisely so.
HAYNE J: The colour from the epithets is distracting at best.
MR FLEMING: Your Honour, “for the purposes of” and “in the course of participating” are a very significant – different concepts and, in our submission, somebody can be in the course of participating in the affairs of the relevant organisation without their having a significant involvement. They can go to one meeting, and we outline the consequences of what might happen in our written argument.
KIEFEL J: But, presumably it is section 5(1)(c) requirements which set apart a person who is a member of an association that has criminal purposes from associations otherwise.
MR FLEMING: Section 5(1)(c), “in the affairs of, the relevant association”, yes, your Honour.
BELL J: It would depend how the prosecution put its case, but to take Justice Hayne’s example, any three person conspiracy, say, to deal at a street level in amphetamines one would think would attract the operation of this Act and in such a case one would expect there would be no difficulty in establishing 5(1)(c), a rather different consideration might apply if the prosecution set out to establish in relation to a drug dealing at a street level in amphetamines by a person who was a member of Hell’s Angels that the drug dealing was done “for the purposes of, or in the course of participating in the affairs of” the organisation. To that extent your client, if charged on a case particularised in that way, would be rather better off than the ordinary drug dealer who was a party to a conspiracy of the kind that Justice Hayne described.
MR FLEMING: Yes, your Honour. Your Honours, could we then turn to an issue raised by our learned friends, the Commonwealth Solicitor‑General, where there is a reference to Leeth and to Kruger. It is said that Leeth and Kruger effectively preclude an argument that there is equality. Your Honour, we are content, without going into great detail of those cases, to say that the essential proposition from those cases is that there is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth. Whether or not there is some other concept of equality before the law has been the subject of some more considerable debate, but, your Honour, we have a copy of this case that we can hand up to your Honours, but we are content with this statement from Cameron v The Queen in respect of that. It is from Justice McHugh.
FRENCH CJ: Citation please.
MR FLEMING: (2002) 209 CLR 339, and at page 352, and it is in the middle of paragraph 44, his Honour there said, and of course he was in the majority in, I think, Leeth:
If there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth.
Much the same was said in a couple of the other judgments, but we are content to rely upon that.
HAYNE J: But you have then got to add to that the numerous statements made by the Court about what content is to be given to the notion of discrimination, relevantly, distinction on irrelevant bases or failure to distinguish when there is a relevant basis for distinguishing. We come back to, is the criterion chosen by the legislature a relevant basis for distinction in outcome? Now, asserting a quality before the law is to identify the question, I am not sure that it gives us the answer.
MR FLEMING: Your Honour, the fundamental proposition is that two people in the same situation who have committed the same offence, one will have a consideration which does not go to the seriousness of the offence and the other will only have that consideration.
HAYNE J: If you have two offenders who have been participants in an affray and one has a criminal history sheet extending over 10 pages that person might be dealt with rather differently from the first offender who is the other participant. As I say, the question is: what is the difference? Is the criterion of difference a relevant criterion of difference? Now, your proposition is that that ultimately is a constitutional question for us to judge, not a legislative question for the Parliament to determine.
MR FLEMING: That is so, your Honour.
HAYNE J: Now, that is the area for debate I would have thought. Why is it a constitutional question for us to debate whether this criterion legislatively chosen is sound or unsound?
MR FLEMING: Because, your Honour, if we go back to the example of the affray, one person is judged upon the participation in the affray and the other person is judged upon that plus something else. One is subject to a maximum penalty of one year, the other is subject to a minimum penalty of six months, and a maximum penalty of seven years and, in our submission, that creates the inequality because it does not go to the individual’s criminality in respect of that offence, it goes to something else altogether different, which we say is an improper consideration because there has been no determination ‑ ‑ ‑
HAYNE J: Well, that ultimately becomes a proposition which constitutionalises purposes of criminal punishment, I think, and that would be a very large step for us to take. It may be a right step, I do not know, but constitutionalising purposes of punishment is then starting to emerge as an area for debate, but perhaps I am pushing the argument where I should not, Mr Fleming. At some point you are going to have to tell me, “No.”
MR FLEMING: Your Honour, that was a subject which was discussed in Cameron at some length and there was quite some dissent about such discussions being constitutional, such issues being constitutional. However, in Cameron there was an acceptance that there ought to be an equality in outcome, similar criminality should be treated similarly and not have imposed upon it a regime determined to be criminal by someone other than the Court, and it not being a relevant consideration for both people or more people who are participating in the affray.
FRENCH CJ: Well, again, coming back to the proposition I put to you before, underpinning this argument both in relation to the VLAD Act and the amendments to the Criminal Code is the notion that there is a constitutional boundary on the law‑making function of the Parliament derived by implication from Chapter III of the Constitution which allows a Court to determine, or it may require a Court to determine, whether or not a proposed – an attribute attracting a particular level of penalty is relevant or rationally connected to the crime.
MR FLEMING: Yes.
FRENCH CJ: And here we have participation in variously defined criminal organisations as a judgment – reflecting a judgment by the legislature that there is a relevant connection for the purpose of both punishing the offence and disrupting such organisations.
MR FLEMING: Yes, but that criminality ‑ ‑ ‑
FRENCH CJ: But then we get into – are we not being asked then to second guess the legislature on the policy as rationality?
MR FLEMING: No, your Honour, because there is a determination of criminality. We must come back to that all of the time. There is a determination of criminality which is the role of the courts and not the role of the legislature.
HAYNE J: Well, to adopt what Justice McHugh said in Cameron in paragraph 45 of Cameron:
Where the facts and circumstances of crimes and the subjective factors of those who commit them are the same, arguably equal justice requires –
et cetera, and the debate is is this a subjective factor; is this a relevant subjective factor? You say, I think your argument has to say, this is not a permissible – not a subjective factor that permissibly the legislature may make relevant.
MR FLEMING: Yes, your Honour, we must say that and for the reasons that we have stated a number of times. Your Honours, in our written outline at paragraph 48 there is a reference to Kable itself and we take some comfort from this: where legislation confers a function on a court which is “repugnant to the judicial process in a fundamental degree” there can be no more important judicial process than the sentencing process, for example, involving the liberty of a person. In our submission, this is a significant enough departure from that sentencing process to attract the Kable principle.
Your Honours, the second limb to Kable is simply one which says that the legislature cannot have the courts doing the bidding of the legislature or the Executive to achieve something using the judicial process inappropriately cloaked, and when we look at the procedures that we have been discussing, the legislature has said this is a criminal organisation, now you as the judiciary will sentence upon the basis that it is a criminal organisation, whether that be the VLAD Act or the other amendments.
In our submission, that is doing the bidding of the Executive or the legislature. They have, to use one set of words, trenched themselves upon the court to achieve a purpose, for example, the dissolution of the clubs. Your Honours will see in our written outline the stated intention of the legislature to destroy the clubs and yet they do not set about doing that except by imposing criminality and then asking the courts to enforce that criminality.
HAYNE J: Just on a point of information, Mr Fleming, has any organisation been declared under the Criminal Organisation Act yet?
MR FLEMING: We think that one may have been, your Honour. That remains a fundamental problem for us. That rather than have the court scrutinise the information in respect of criminality they have chosen to impose it by legislation. Your Honour, that brings me finally to standing. The specific purpose of this legislation is to, in our submission, destroy the clubs. That is the stated intention of the government in passing this legislation.
The plaintiff is a member of a club. It is not hypothetical for him to come to this Court and say to the Court “I am a member of the club. I have interests in the club. Can the legislature really take that away from me in the manner in which it is doing, that is, by imposing penalties upon perhaps colleagues – participants in the club?” In our submission, that cannot possibly be either not a matter or it cannot be hypothetical. You are saying to this Court, “Can you destroy my club in the manner in which you are doing?”
Your Honour, it might be that if I was a member of a club, whether it be the Black Vespers or some such thing and I came to this Court and I asked the Court for the relief, then it would be hypothetical. At any number of levels it would be immediately apparent that I might not fit with any of the categories that are there, except, perhaps, the VLAD Act because I might be a member of the Queensland Bar Association and have to disprove that that is an organisation which does not have as one of its purposes crime or conspiracy to commit crime. But it would be for a member of the club appropriate for him to come to this Court and say “Can they do that with the legislative regime, can they take away my rights and actually destroy the club of which I am a member?” Your Honour, in our submission ‑ ‑ ‑
HAYNE J: That is a proposition that is, no doubt, prompted by the colour of the expression found in the ministerial statement.
MR FLEMING: Yes, your Honour.
HAYNE J: But it needs to be unpacked, just as does the statement in the VLAD Act, disestablish the clubs.
MR FLEMING: Yes.
HAYNE J: What exactly are these Acts doing? The Acts create some crimes. They do various things about sentencing and bail. Maybe they do not. You can tie all that up in a single colourful phrase of “destroy the club”. The expression should not mask the difficulties that may lie in approaching the question at that level of generality. Indeed, the level of particularity that it may require consideration may be the level which reveals whether there is a matter in this Court and reveals whether there is a hypothetical, only a hypothetical dispute.
MR FLEMING: Can I take your Honours to A3 which is the VLAD Act and it is the objects of the Act.
HAYNE J: What I am asking you to do is probably something I should be asking the solicitor to do, namely unpack that.
MR FLEMING: This is a start, your Honour, section 2 of the VLAD Act, the objects that are there. You will see, for example, in the second subsection there is an avowed policy of “imposing significant terms of imprisonment for . . . associates who commit declared” crimes. So, it is a deliberate policy and one can see the way through the other Acts as well that there is a ‑ ‑ ‑
FRENCH CJ: It rather misleads as to the content of the term “vicious lawless associate”, does it not, because the commission of a declared offence is, in fact, part of the definition of that term under section 5. I think it highlights what Justice Hayne said before about the rather distracting nature of the epithet, if not misleading, in terms of the operation of the Act.
MR FLEMING: Yes, yes.
HAYNE J: The drafting does, if I may say so, obscure much more than it reveals.
MR FLEMING: It really misdirects the reader as to what this Act is about.
HAYNE J: Well, one wonders who the reader was intended to be.
MR FLEMING: Your Honours, finally in respect of matter, this is at the outline that we handed up this morning, just the last paragraph 9. The proceeding does not fail for raising only a hypothetical question. The plaintiff’s interest in the validity or otherwise is not of mere intellectual or emotional concern, taking passages out of cases, rather it is of real practical importance to him, real practical importance.
KIEFEL J: That might address standing, but although there is some overlap the question of whether there is a hypothetical question is a somewhat different matter.
MR FLEMING: Yes, your Honour, however, may we answer it in the same way? It is not hypothetical in that this is going on around him in relation to the club of which he is a member and the intention remains to disestablish such acts and the way in which you do that is by increasing penalties in all sorts of ways including going back to our first example of affray.
FRENCH CJ: Sorry, just to try and focus a little more narrowly. We can put to one side 60A, B and C, because assuming you have the status of a participant then they affect your freedom of movement and so forth, and put to one side also perhaps the Liquor Act provisions relating to entry onto licensed premises wearing the colours. So, for the purposes of the sentence enhancement provisions of the Criminal Code, is there any dispute that on the facts of the special case you are a participant in a declared organisation?
MR FLEMING: That is not an agreed fact, your Honour, but the fact that we are member makes us by definition a participant.
FRENCH CJ: Then, in relation to the VLAD Act, can we go any further, or can we go as far as, an inference that you are a participant in a relevant association?
MR FLEMING: Yes, we can go that far, your Honour, yes.
FRENCH CJ: But no further.
MR FLEMING: Thank you, your Honours, they are our submissions.
FRENCH CJ: The Solicitor‑General for Queensland.
MR DUNNING: Your Honours, may we start please with the question of standing and, in particular, as your Honours will appreciate, the narrowing that his Honour the Chief Justice just referred to as the one that the State of Queensland accepts that is, in respect of the 60A through C provisions and the Liquor Act provisions. There is standing but that outside that there is not standing in the relevant sense and, further, the complaints themselves are hypothetical in character.
This is a matter that is developed in our written submissions at paragraphs 31 to 41, but ultimately our complaint about the challenge to the VLAD Act provisions and those sentence enhancement provisions of the Code and the Bail Act provisions is that there exists no real controversy concerning any duty or liability of the plaintiff that he calls to have determined and in the absence of that, in our respectful submission, at settled law, by reference to those authorities to which we have set out, that he lacks standing.
HAYNE J: Can I just understand that better about the bail provisions? The plaintiff alleges he is a member of Hells Angels?
MR DUNNING: Yes.
HAYNE J: Hells Angels is a prescribed organisation?
MR DUNNING: Yes.
HAYNE J: The clubhouse is a prescribed place, is it?
MR DUNNING: Yes, your Honour.
HAYNE J: Is not the consequence that he, as a member, cannot attend the premises of the organisation of which he is a member (a) without committing an offence, (b) committing an offence which would invoke the relevant bail provisions?
MR DUNNING: That is correct, your Honour, yes.
HAYNE J: Yes. That is hypothetical, is it?
MR DUNNING: In respect of the bail provisions, your Honour, in our respectful ‑ ‑ ‑
HAYNE J: Why?
MR DUNNING: Because he has not done that. Your Honours, in relation to the lack of standing, we would also ‑ ‑ ‑
CRENNAN J: I am sorry to go back just briefly, but what about Croome v Tasmania in that context? He has indicated, has he not, that he wants to do that? He wants to continue to be a member.
MR DUNNING: Yes, he has indicated that he wants to, as it were, assert his rights of membership. Three members of the Court in Croome v Tasmania would take the view it is what he has done in the past that matters, and nothing in that regard would have the consequence of making him liable to any prosecution. The other three members of the Court spoke in terms of how it might, as it were, overshadow – perhaps rather than me paraphrasing it, I might take your Honours, please, to Croome. It is in volume 1, tab 12, page 463. Your Honours, at page 127, which is 470 of the paginated bundle – your Honours, might I inquire, would it be more convenient to speak to the pagination of the document or the pagination from the report?
FRENCH CJ: I think you had better mention both.
MR DUNNING: Very good, your Honour.
FRENCH CJ: Some of us are working off electronic ‑ ‑ ‑
That seems to be the general scheme, does it not, of the way the Code provisions other than 60A, B and C operate? Leave 60A, B and C otherwise. Two points about enlistment then emerge perhaps with this third definition, prescription by regulation, or in this case by legislation; the absence of the objective criteria of serious criminal activity and unacceptable risk to safety, welfare or order, plus the question about the availability of the defence. The question about the availability of the defence emerges only, I think, when you recognise the distinction between the positive statement in the first two limbs of the definition “criminal organisation”, and the negative statement in the defence.
The negative statement in the defence is that the defendant must show that the organisation has no purpose of engaging in any criminal activity. Not serious criminal activity, not serious criminal activity that represents an unacceptable risk to safety, welfare or order, but there is a lack of congruence between the objective elements of parts (a) and (b) of the definition and the defence which is available to the accused.
Now, long preamble; enlistment: I understand the argument against the State to be that the courts are enlisted to destroy organisations chosen by the Parliament, or later by the Executive, and the means of destruction include but are not limited to this attribute of heightened punishment in circumstances that may include those I have described. Now, that I think is the kind of enlistment argument that may be on the table. I think it is a different kind of argument from that which was on the table in Totani.
MR GRANT: Yes, I understand that, your Honour, but they share this feature – or rather there is a distinction, and that is the action by the Executive in this case in making a declaration, a regulation rather under paragraph (c) of the definition of “criminal organisation”, would make it patently clear the part the Executive is playing, the Executive function, the Executive role, in the operation of this legislation, and that is the Executive is taking upon itself the onus of making a political judgment about whether or not an organisation should be prescribed in accordance with the legislation. There can be no doubt whatsoever in the mind of any sort of informed observer that the Executive has assumed that political burden, and there can be no doubt at all that all the Court is called upon to do in those circumstances is to apply the law, including the incorporation of the regulation into that law in pursuance of the political judgment of the Executive in an orthodox judicial function.
Your Honour, when one is considering Kable, leaving aside issues of consorting or anything like that, freedom of association, it is difficult to articulate the principle to which your Honour adverts on Kable grounds, a principle that would preclude the Executive making that sort of determination in consort with legislation of this sort that did not simply resolve to the notion that the Court is entitled to make a normative judgment about the nature of the conduct that Parliament may prescribe by criminal statute. That is what the principle must come down to if one is going to cast the notion of enlistment in that way.
HAYNE J: You say they merge into this notional equality before the law?
MR GRANT: Must do, your Honour. It must resolve to the Court making a normative judgment which, to adopt the phrase used by your Honour the Chief Justice, second‑guesses that patent political judgment that has been made by the legislature in circumstances where it is a fundamental underpinning of our constitutional system that Parliament can make a determination as to what conduct it seeks to proscribe by its criminal statues, and it is for the Court to apply that legislation.
CRENNAN J: Is that the answer to any suggestion of cloaking?
MR GRANT: The patency of the process, your Honour, is an immediate and we say complete answer to the notion that there is any cloaking going on here.
HAYNE J: It is odd to mix it with two judicial processes of determining what a criminal organisation is. Now, the oddity may lead one nowhere, but it is odd.
MR GRANT: It is odd, but it is patent and it is the assumption of a political responsibility by the Executive and, in our submission, your Honours, that precludes it from falling within this enlistment or conscription limb of Kable.
KIEFEL J: Do you agree that the Executive’s role in that regard can be limited as a matter of construction as Queensland suggests?
MR GRANT: These were – there are a number of other points we make in relation to this notion of enlistment, your Honour, and that is the first of them, that it would not be lawful to prescribe by regulation a body that was simply considered to be a threat to public order falling well outside the parameters of paragraphs (a) and (b) of the definition because it would simply be too far outside the scope and purpose of the legislation, and your Honour Justice Hayne observed that there is no immediate textural underpinning for that particular conclusion. But, your Honours, if one was before the Supreme Court of a State as the Solicitor‑General seeking to defend the validity of a regulation like that, one might find that a hard argument to prosecute.
Certainly it would not appear as attractive as it may appear here in the context of this sort of hypothetical discussion, which brings me to the next point, your Honours. The proposition that the Executive might make a regulation in those terms serves to highlight the hypothetical nature of a case at Bar at the moment. There is no suggestion that the Executive would do so, or has any plans to do so.
The possibility that it might is simply not a basis on which to test the validity of this legislation. As with the legislation under consideration in Forge, the mere fact that there was a statutory provision which allowed the courts, hypothetically speaking, to fill the benches of the State of New South Wales with acting judges and so undermined the independence of the judiciary, was not a determinant of invalidity in those proceedings, in the circumstances presenting there.
Similarly, in the circumstances presenting here, the possibility that the Executive may make that sort of determination simply is not a determinant of invalidity, and I think the Solicitor‑General for the Commonwealth touched on that as well. But, then, your Honours, even assuming – and this is the final point we make in relation to this possibility – even assuming the Executive could lawfully make a declaration or a regulation that fell outside what appears to us to be the scope of the legislation, that only serves to increase the availability of the various defences appearing in the legislation.
That is, the ability of a defendant, an accused, to come and prove that the organisation does not have a purpose of engaging in criminal activity. To adopt a sailing term, your Honours, it is almost a self‑righting mechanism. The further outside the scope of the legislation one goes the more available the ‑ ‑ ‑
HAYNE J: Have you got the lifebelt on, Mr Solicitor, or the analogy does go awry.
FRENCH CJ: So, I do not think you want to talk about outside the scope, closer to the boundary.
MR GRANT: Yes, yes, but the point remains, your Honours. If I could then focus, your Honours, on the present declaration of the 26 motorcycle clubs as criminal organisations, that is not unusual and it is not something which operates to give rise to any sort of conscripting or enlisting effect. Many statutes provide for a decision made by the Executive which obliges the court to make orders when taken together with other findings made by the court.
This is an orthodox exercise of the power to assign a particular legal status to a person or a substance or a place or a thing for the purposes of creating criminal offences for application by the courts, and some further observation can be made about the orthodox exercise of executive or legislative authority in that respect. Oftentimes, they relate to matters which are apparent only after a complex or an expert technical inquiry into which the court which ultimately comes to apply the law, has no insight or no indication as to the content of that inquiry.
They may be the result of a detailed examination of complicated facts, as one assumes was the case underlying the declarations in this case. There may be a variety of opinion concerning the accuracy or the appropriateness of the designation which is given by the Executive or the legislature to that person or place or thing or substance and there were, your Honours, examples given by Queensland in the context of the Totani legislation.
Obviously, those examples did not bear fruit in the context of that legislation because the particular configuration of the legislation, the fact that it involved the court in the establishment of a new norm but the point remains good. There is no enlistment or conscription simply because the Executive or the legislature make that sort of designation, whether it be in relation to endangered species or prohibited drugs or prohibited imports.
They are all determinations which are made by the Executive without any sort of curial consideration and then frontend loaded into criminal offences, without there being complaint of constitutional infirmity. Then, your Honours, even were that not so, none of these provisions incorporating as they do, the declaration in this case, none of them close off a judicial inquiry because each charge or circumstance of aggravation, as has been said a number of times today, allows an accused to prove that the organisation is not what it is said to be, so the facility for judicial inquiry to look behind those matters remains.
If I could then turn, your Honours, to the question of repugnancy to the judicial process and, as we understand the plaintiff’s submission concerning equality before the law, it comes in under the broad rubric of repugnancy to the traditional judicial process because it involves, as the plaintiff would have it, the court in a process whereby sentence is imposed without there being a connection or a relevant or necessary connection between the conduct constituting the offence and the penalty prescribed.
That is said to arise, your Honours, in relation to special sentences under the Criminal Code, because there is no connection with the seriousness of the conduct under VLAD because the sentence is set with reference to association with a relevant association, rather than the seriousness of what the person has actually done and in respect of the Bail Act amendments, because presumption against bail is directed to the question of association rather than the likelihood of non‑appearance or the risk of reoffending while on bail. That is in a nutshell the basis on which the plaintiff asserts that there is a repugnancy in these provisions to the traditional exercise of the judicial process.
Your Honours, it is important when considering assertions of repugnancy to identify the standard or criterion against which it is to be measured in the broad sense, and that was a matter that was given some attention by your Honours Justices Hayne, Crennan, Kiefel and Bell in Assistant Commissioner Condon v Pompano (2013) 87 ALJR 458. It is volume 1 of the authorities, your Honours, and at page 1, for your Honour Justice Hayne, and the passage I wish to take your Honours to appears at paragraph [169] which is on page 39.
It is well trodden ground, your Honours, but it bears repetition in this contest because it sets out with clarity that where the question is one of repugnancy to the traditional judicial process, the relevant standard or criterion or question is whether the court can and will act fairly and impartially in the application of the legislation and it is simply a bridge too far to say, on a proper analysis of any of the legislative provisions under consideration here, the three categories said to be implicated, that the court is precluded by that legislation from acting fairly or impartially in its application and that is the single standard or criterion in this context, your Honours.
There will be repugnancy where the legislation precludes the application of fundamental features of the traditional judicial process. The Commonwealth written submissions talk about it in terms of functional and procedural requirements of the traditional judicial process and we agree with and adopt that particular characterisation.
So far as the specific complaints made by the plaintiff are concerned, we make three observations, your Honours, in closing. The first is that fairness in this context is concerned with the court’s processes. It is not concerned with the criteria that have been prescribed by the legislature to constitute the criminal offence or the circumstance of aggravation and it is not concerned with the justifiability of the sentencing outcome derived from the application of that criterion and the reasons for that are as explained by this Court by the plurality in Magaming v The Queen to which my friend for Queensland took you, your Honours, (2013) 87 ALJR 1060. The relevant paragraphs in the plurality’s reasons, your Honours, are 51 and 52, and in the reasons of your Honour Justice Keane at 101 to 108.
That puts to bed any suggestion, in our submission, your Honours, that when one is looking at fairness or compliance with the traditional judicial processes, that one looks at notions of justifiability or proximity or rationality. They are matters for political judgment and the application of those political determinations by the court in no way bears upon the court’s institutional integrity in the relevant sense.
Quite different, your Honours, to the question in the federal context, whether there is a sufficient nexus between a section 51 head of power and a particular criminal offence that has been enacted purportedly in reliance on that 51 head of power. Obviously, there is an inquiry that is able to be had there in relation to nexus but it is a very, very different thing to say that when one is looking at a criminal provision enacted by a State legislature exercising a plenary legislative power, that the court has the facility to inquire into the proportionality or the appropriateness or the justifiability of either the conduct which is prescribed or the prescription of the conduct, or the penalty that is provided for the breach of the criminal norm.
The second point, your Honours, is that it is simply unnecessary to decide, in the context of this case, whether Chapter III gives rise to some sort of limited constitutional guarantee of legal equality. It is unnecessary to decide because these are clearly laws of general application on their proper construction. Where any person commits an offence falling within a prescribed category in circumstances where, in effect, on proper analysis of the legislation, that person is a participant in an association that engages in or conspires to engage in a particular category of offences, a minimum or a further sentence will apply to that person.
So the category of potential offender, your Honours, includes all members of the public within the reach of the Queensland laws. The law will be engaged, when the person has participated in the relevant sense and that turns on questions of conduct and comportment, ultimately. These are not laws that are engaged by some sort of innate attributes such as ethnicity or gender so as to get any sort of start into the argument about inequality before the law. They are laws of general application which seek to govern the exercise of criminal jurisdiction and for that reason they just do not trespass upon the judicial function for the reasons your Honours discussed by Chief Justice Mason and Justices Dawson and McHugh in Leeth v The Commonwealth (1992) 174 CLR 455 at page 467.
Then finally, your Honours, in relation to bail, for the reasons that have been addressed at the Bar table, it is not inconsistent in any way with the exercise of judicial power for a statute to make it more difficult for certain persons to obtain bail on the basis of that same political judgment concerning community protection and welfare. There are not a closed category of objectives to which a presumption of bail may be directed and, of course, there are presumptions against bail in current and past Australian legislation which are directed to notions of community protection and welfare and this simply falls in that category. In that respect, your Honours, we have on our list of authorities a reference to Chau v The Director of
Public Prosecutions, a decision of the New South Wales Court of Appeal (1995) 37 NSWLR 639.
This Court has a very limited bail jurisdiction and, of course, there are very few High Court decisions in relation to bail but the Chau Case is interesting because there is a discussion by Chief Justice Gleeson when he was on the New South Wales Court of Appeal concerning the nature of the right to bail and whether there was any such right at common law and then in President Kirby’s reasons, there is a discussion of the notion of equality before law and the place that bail had in that principle, if it existed, and it is interesting that his Honour draws the conclusion that even if there was a constitutional principle which protected or compelled equality before the law, the refusal of bail or legislation which precluded bail would not breach that protection in its application. If it please the Court, they are the submissions.
FRENCH CJ: Yes, thank you, Mr Solicitor. The Court will adjourn until 10.15 tomorrow morning.
AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 SEPTEMBER 2014
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