CRENNAN, KIEFEL, GAGELER AND KEANE JJ. The plaintiff, a member of the Brisbane Chapter of the Hells Angels Motorcycle Club ("the HAMC"), seeks to challenge the validity of the Vicious Lawless Association Disestablishment Act 2013 (Q) ("the VLAD Act") and certain provisions of the Criminal Code (Q), the Liquor Act 1992 (Q) ("the Liquor Act") and the Bail Act 1980 (Q) ("the Bail Act").
The challenged provisions may conveniently be grouped into three categories for the purposes of discussion and analysis. The first category includes the VLAD Act, which, in cases where a designated offence has been proved against an individual, imposes more severe penalties than would otherwise be applicable where the individual is also proved to be a "participant" in the affairs of an association. Also in the first category are ss 72(2), 92A(4A), 320(2) and 340(1A) of the Criminal Code. They provide for either a mandatory minimum penalty, a higher maximum penalty, or both, where an individual, found guilty of a designated offence, is also found to be a participant in a criminal organisation. The HAMC and 25 other motorcycle clubs were declared to be criminal organisations for the purposes of the Criminal Code by the Criminal Code (Criminal Organisations) Regulation 2013.
The second category of challenged provisions includes ss 60A, 60B and 60C of the Criminal Code, which were enacted by s 42 of the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Q) ("the Disruption Act"). These provisions create new offences, an element of which is being a "participant" in a criminal organisation as defined in the Criminal Code. Also in this category are ss 173EB, 173EC and 173ED of the Liquor Act, which were enacted by s 75 of the Tattoo Parlours Act 2013 (Q), and which create new offences, elements of which involve the wearing or carrying of symbols of membership of a "declared criminal organisation", such as the HAMC.
The third category of challenged provisions consists of sub‑ss (3A), (3B), (3C) and (3D) of s 16 of the Bail Act, which were added to the Bail Act by the Disruption Act. They effect a reversal of the presumption in favour of bail against an individual who is alleged to be a participant in a criminal organisation, such as the HAMC.
None of the laws in any of the three categories operates directly to proscribe membership of the HAMC or any other organisation. The plaintiff contends, however, that all the challenged laws were enacted with the objective of destroying the HAMC and other motorcycle clubs.
The proceedings
The plaintiff commenced proceedings in the original jurisdiction of this Court seeking declarations that the challenged laws are invalid on the ground that they offend the principle in Kable v Director of Public Prosecutions (NSW) ("the Kable principle").
The Kable principle was most recently summarised in Attorney‑General (NT) v Emmerson, where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:
"The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid." (footnotes omitted)
Decisions of this Court establish that the institutional integrity of a court is taken to be impaired by legislation which enlists the court in the implementation of the legislative or executive policies of the relevant State or Territory, or which requires the court to depart, to a significant degree, from the processes which characterise the exercise of judicial power.
The plaintiff sought to contend that the challenged laws require the courts to perform their functions in a manner which is incompatible with the judicial process in two respects: the first and third categories of challenged provisions were said to be contrary to fundamental notions of equal justice in that they require certain offenders to be dealt with by the courts more severely than other offenders by reason of their lawful choice of associates rather than by reason of their personal and individual culpability for the offence. Secondly, all the impugned laws, considered together, were said impermissibly to enlist the courts to implement the policy of the executive and legislature to destroy associations which have not directly been made unlawful by the challenged provisions.
The defendant, the State of Queensland, argued that the plaintiff had no standing to challenge the validity of the first and third categories of impugned laws. The defendant also argued that none of the impugned laws infringes the Kable principle.
The Attorney‑General of the Commonwealth and the Attorneys‑General of each of the States (except Tasmania) and the Northern Territory intervened in support of the defendant.
The scope of the plaintiff's challenge
It is necessary at the outset to be clear as to what the plaintiff's challenge does not involve. First, the plaintiff does not seek to rely upon the freedom of communication on governmental or political matters which arises from the limitations on legislative or executive power implicit in ss 7, 24, 64 and 128 of the Commonwealth Constitution or a cognate freedom of association.
Secondly, the plaintiff does not seek to raise an issue of the kind resolved in Australian Communist Party v The Commonwealth, where it was held that the Commonwealth Parliament was not competent to determine, or to authorise the executive government to determine, the very facts upon which the existence of a necessary head of Commonwealth legislative power depends. No such question arises in relation to the legislative competence of the State of Queensland. Apart from the question raised as to the application of the Kable principle, there is no dispute that the challenged laws are within the plenary competence of the Queensland Parliament to make laws for the peace, order and good government of the State.
Thirdly, it is not part of this Court's function to pass judgment on the political wisdom of the impugned laws. As explained by Brennan CJ in Nicholas v The Queen:
"It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests."
The special case
The parties agreed to state a number of questions of law for the opinion of this Court in a special case. As well as the questions of whether and the extent to which the challenged laws are contrary to the Kable principle, the special case poses questions as to the plaintiff's standing to seek a declaration that the first and third categories of the challenged laws are invalid, and whether that challenge is hypothetical.
The special case includes a number of facts agreed between the parties in relation to these questions. In this regard, it may be noted that networks involving members of the HAMC have been the subject of multiple investigations by the Queensland Police Service in relation to organised crime, predominantly drug trafficking. It is also an agreed fact that a significant number of members of the HAMC in Queensland have been convicted of offences including the possession, production and trafficking of dangerous drugs. The motto of the HAMC is "When we do right nobody remembers, when we do wrong nobody forgets."
The plaintiff claims that the HAMC, and he as a member, have been engaged for many years in various fundraising activities for assorted registered charities, and other charitable purposes, including St John Ambulance and children's hospitals.
The defendant contends that the plaintiff lacks standing to seek declaratory relief as to the invalidity of the first and third categories, and also contends that the plaintiff's challenge to those provisions is hypothetical.
It must be accepted that, for reasons to be stated in more detail, the plaintiff does not have standing to challenge the validity of the laws in the first category of impugned provisions. None of those laws materially affects the plaintiff's legal position. Those laws operate only where an offence has been committed against existing unchallenged laws. The plaintiff has not been charged with any offence which might attract the operation of any of the impugned provisions. More importantly, he has not indicated that he has conducted, or intends to conduct, himself in a manner which would lead to such charges; he does not assert that he would do so were it not for the extra penalties that might be imposed under the challenged laws; and he does not assert that his freedom of action is otherwise legally or practically impeded. He cannot be assumed to intend to commit any offence that would engage the operation of the impugned provisions. In relation to the third category, the provisions of the Bail Act also have no material application in relation to the plaintiff; they do not affect his legal position in any way.
By contrast, the laws in the second category do restrict the plaintiff's freedom to conduct himself as he wishes, and as he would be free to do if these laws had not been enacted. It is an agreed fact that the plaintiff does wish to continue to attend at the HAMC Clubhouse, to attend social events in public places in company with other members of the HAMC, to wear the HAMC's colours on premises licensed under the Liquor Act, and to promote to other individuals the benefits of membership of the HAMC.
In these circumstances, the defendant was not disposed to make a general objection to the plaintiff's standing to challenge the validity of these provisions, nor did it argue that his challenge to these laws is in any way hypothetical. Accordingly, it should be held that the plaintiff has a sufficient interest to challenge the validity of the provisions because they have an immediate effect upon his liberty.
The plaintiff's contention that the second category of impugned laws infringes the Kable principle should be rejected. It is fair to say that the language in which these provisions are expressed is apt to create confusion as to their operation, and indeed to give colour to the plaintiff's argument. In particular, the legislative reference to "criminal organisation" is apt to mislead a casual reader as to the effect of the laws.
In truth, these laws do not declare membership of any organisation a criminal offence. Rather, they make membership of a designated association one ingredient of an offence. The commission of the offence must be proved in order to establish criminal guilt and liability to criminal punishment. Notwithstanding the colour lent to the plaintiff's argument by the tendentious language in which these provisions are expressed, their effect is not to enlist the courts to implement the policies of the executive or legislative branches of government.
These laws do not require a court to give effect, by judicial order, to a legislative or executive decision which establishes new norms of conduct for the plaintiff or other members of any association. Nor do they require a court to proceed otherwise than in accordance with the processes which are understood to characterise the exercise of judicial power. In these respects, the present case stands in contrast to the decision in South Australia v Totani, on which the plaintiff founded this aspect of his challenge.
It should be noted that the arguments concerning "equal justice" before the law were not advanced in support of the plaintiff's challenge to the laws in the second category. Accordingly, they need not be discussed further.
The operation of each category of the challenged provisions must be considered more closely in order to explain these conclusions. In considering the merits of the plaintiff's challenge to the second category of impugned laws, it is necessary to bear in mind the plaintiff's contention that all three categories operate as a package designed to destroy organisations such as the HAMC. The operation of the first and third categories must be noted, both to explain why the plaintiff has no standing to challenge their validity, and as part of the milieu in which the laws in the second category operate.
The first category of challenged laws
The VLAD Act
The VLAD Act seeks to achieve its "objects" by establishing a sentencing regime, involving mandatory minimum sentencing, which targets offenders connected to a relevant association. It has no operation where an offence has not been committed under existing law.
Section 2(1) of the VLAD Act states that the objects of that Act are to:
"(a) disestablish associations that encourage, foster or support persons who commit serious offences; and
(b) increase public safety and security by the disestablishment of the associations; and
(c) deny to persons who commit serious offences the assistance and support gained from association with other persons who participate in the affairs of the associations."
Section 2(2) of the VLAD Act provides that these objects are to be achieved by:
"(a) imposing significant terms of imprisonment for vicious lawless associates who commit declared offences; and
(b) removing the possibility of parole for vicious lawless associates serving terms of imprisonment except in limited circumstances; and
(c) encouraging vicious lawless associates to cooperate with law enforcement agencies in the investigation and prosecution of serious criminal activity."
The substantive operation of the VLAD Act is effected by s 7(1), which provides as follows:
"A court sentencing a vicious lawless associate for a declared offence must impose all of the following sentences on the vicious lawless associate -
(a) a sentence for the offence under the law apart from this Act and without regard to any further punishment that may or will be imposed under this Act;
(b) a further sentence of 15 years imprisonment served wholly in a corrective services facility;
(c) if the vicious lawless associate was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association - a further sentence of 10 years imprisonment served wholly in a corrective services facility which must be served cumulatively with the further sentence mentioned in paragraph (b)."
Section 7 operates by reference to the concepts of "participant" and "vicious lawless associate". In this regard, "participant" is defined in s 4 as follows:
"For this Act, a person is a participant in the affairs of an association if the person -
(a) (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the association; or
(b) (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the association; or
(c) has attended more than 1 meeting or gathering of persons who participate in the affairs of the association in any way; or
(d) has taken part on any 1 or more occasions in the affairs of the association in any other way."
The concept of "participant" is relevant to the identification of an individual as a "vicious lawless associate", which is defined in s 5 as follows:
"(1) For this Act, a person is a vicious lawless associate if the person -
(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.
(2) However, 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."
Section 3 of the VLAD Act contains the following material definitions:
"association means any of the following -
(a) a corporation;
(b) an unincorporated association;
(c) a club or league;
(d) any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal.
base sentence, for a vicious lawless associate, means the sentence imposed on the associate under section 7(1)(a).
declared offence means -
(a) an offence against a provision mentioned in schedule 1; or
(b) an offence prescribed under a regulation to be a declared offence.
further sentence, for a vicious lawless associate, means a sentence imposed on the associate under section 7(1)(b) or (c).
office bearer, of an association, means -
(a) a person who is a president, vice-president, sergeant-at-arms, treasurer, secretary, director or another office bearer or a shareholder of the association; or
(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises himself or herself to hold a position of authority of any kind within the association."
Under s 10, the Act empowers the Governor in Council to "make regulations declaring offences for the purposes of this Act." Schedule 1 lists the declared offences under the Act. It is unnecessary to set out all the offences listed in Sched 1. It is sufficient to note that those offences are existing offences under the Corrective Services Act 2006 (Q), the Criminal Code, the Criminal Proceeds Confiscation Act 2002 (Q), the Drugs Misuse Act 1986 (Q) and the Weapons Act 1990 (Q).
In addressing the question of the plaintiff's standing to challenge the validity of the VLAD Act, it is to be noted that a defendant will be liable to the additional penalty provided by s 7(1)(b) of the VLAD Act only if each of the following elements is proved by the prosecution:
(a) the defendant has committed an offence listed in Sched 1 (that is, an offence already known to the law);
(b) the defendant was a participant in the affairs of an association either when the declared offence was committed or during the course of the commission of the declared offence; and
(c) the defendant intentionally, knowingly or recklessly committed the declared offence for the purposes of the association or in the course of participating in the affairs of the association.
The important point in relation to the plaintiff's standing is that the exposure of any individual to additional penalty under the VLAD Act depends upon proof that an offence, not created by the impugned provisions, has been committed. No challenge is made to the validity of the laws which create those offences; and, unsurprisingly, the plaintiff does not assert that he is at liberty to choose whether or not to commit any one of these offences. It is sufficient, for present purposes, to note that the plaintiff's freedom of action is not affected in any way by the extra punishment for which the VLAD Act provides.
Sections 72, 92A, 320 and 340 of the Criminal Code
Sections 72, 92A, 320 and 340 of the Criminal Code were amended by the Disruption Act to introduce more severe sentences where the offender is found guilty of one of those existing offences and is also found to be a participant in a criminal organisation.
Section 72 was amended so that where an offender is convicted of the basic offence of affray, the penalty for a participant is a minimum of six months' imprisonment without parole and a maximum of seven years, whereas the maximum penalty for the basic offence is one year's imprisonment.
Section 92A was amended so that where an offender has been convicted of the basic offence of misconduct in respect of public office, the maximum penalty for a participant is 14 years' imprisonment, whereas the maximum penalty for the basic offence is seven years' imprisonment.
Section 320 was amended so that where an offender is convicted of the basic offence of doing grievous bodily harm, the penalty for a participant (where the grievous bodily harm is done to a police officer) is a minimum of one year's imprisonment without parole and a maximum of 14 years, whereas the maximum penalty for the basic offence is 14 years' imprisonment.
Section 340 was amended so that where an offender has been convicted of the basic offence of serious assault, the penalty for a participant is a minimum of one year's imprisonment without parole and a maximum of seven years, whereas the maximum penalty for the basic offence is seven years' imprisonment.
Once again, it is not suggested that the plaintiff has infringed, intends to infringe, or would like to infringe, any of the provisions which establish the basic offences.
Standing
The plaintiff did not call into question the authorities which establish that a party who seeks a declaration that a law is invalid must have sufficient interest in having his or her legal position clarified. In Pharmaceutical Society of Great Britain v Dickson, in a passage cited with approval in Croome v Tasmania, Lord Upjohn said "[a] person whose freedom of action is challenged can always come to the court to have his rights and position clarified". In Croome v Tasmania it was observed that such a person would have a sufficient interest to establish a justiciable controversy, which is to acknowledge that issues as to standing and whether a question is hypothesised may overlap.
The plaintiff argued that his claim was supported by the authorities and that he was entitled to know whether the impugned laws applied to him. It can be said immediately that they do apply to him, just as they apply to everyone else in Queensland. The plaintiff has no more interest than anyone else in clarifying what the law is. The pertinent question is whether the plaintiff has a sufficient interest to have his "rights and position clarified" by the declaration he seeks.
Under the established requirements as to standing, the plaintiff does not have a sufficient interest in the validity of the laws in the first category to claim a declaration that they are invalid. In Australian Conservation Foundation v The Commonwealth, Gibbs J said of the notion of "sufficient interest" that:
"A person is not interested ... unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi."
In Croome v Tasmania, it was held by Brennan CJ, Dawson and Toohey JJ that a sufficient interest extends to any case where a person's freedom of action is affected by the impugned laws. The laws which the plaintiff seeks to challenge do not affect his freedom of action. The activities upon which the operation of the first category of challenged laws depends are unlawful under the general law. The new provisions add to the adverse consequences of contravention of existing norms of conduct, but do not impose any new prohibition or restriction on any person. The new provisions might lead to a more severe sentence; but their only present operation is to provide an extra incentive to obey existing, valid laws. That is not something which is said, or could be said, to be a disadvantage to the plaintiff.
The laws challenged in Croome v Tasmania criminalised the plaintiffs' existing relationships with other people. Brennan CJ, Dawson and Toohey JJ held that the plaintiffs' admitted conduct rendered them liable to criminal prosecution, and, on this basis, that they had sufficient interest to support their claim for declarations that the impugned laws were invalid. Gaudron, McHugh and Gummow JJ held that the challenged laws affected the plaintiffs by imposing "duties which require the observance of particular norms of conduct and attach liability to prosecution and subsequent punishment for disobedience."
Any difference between the approaches to the question of standing taken in the two judgments in Croome v Tasmania is not material for present purposes. While in Croome v Tasmania the plaintiffs' standing to challenge the validity of the laws did not depend upon the commencement by the executive government of processes to enforce the challenged law against the plaintiffs, their liberty was constrained by the proscriptions in question.
In the present case, as indeed the plaintiff emphasised in his argument, none of the challenged laws purports to criminalise the plaintiff's relationship with his fellow members of the HAMC. As noted above, the challenged laws in the first category do not impose any legal or practical restriction upon the plaintiff's freedom of action: the plaintiff does not assert that he has broken, or that he intends to break, any existing laws; and if any assumption is to be made about the plaintiff's activities in the future, it should be assumed that he will conduct his activities within the law so as to avoid prosecution and conviction.
In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, Gaudron, Gummow and Kirby JJ held that a plaintiff had standing where its interest was "as a matter of practical reality … immediate, significant and peculiar to [it]." In the present case, it may be accepted that the avowed objective of the VLAD Act (whether considered alone or together with the other challenged laws) is to discourage membership of the HAMC and like associations by the threat of draconian punishment of those who break the law while a member of such an association. If the Act is effective in that regard, membership of the HAMC might be expected to decline. That might be disappointing for the plaintiff in a way which would be peculiar to him, in the sense that members of the general public would not be similarly affected. But to say that the VLAD Act is calculated to discourage membership of the HAMC is distinctly not to say that the legal position of the plaintiff is immediately or significantly affected by the VLAD Act. His liberty and other rights, duties, liabilities and obligations remain unaffected by the enactment of these provisions; and his legal position would not be materially advantaged if his challenge were to succeed.
The power to declare a law to be invalid is confined by the boundaries of judicial power. In Robinson v Western Australian Museum, Mason J said that the requirement as to standing to invoke the exercise of judicial power:
"reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions."
The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect "the legal situation of persons subject to the jurisdiction of the court" serves to maintain the ordinary characteristics of judicial power.
It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity.
In addition, the established requirements as to standing help to ensure that the exercise of judicial power is informed, as fully as possible, by the "concrete adverseness which sharpens the presentation of issues". It may be acknowledged that the rules as to standing will not always achieve that purpose, as will be seen in the discussion of the wide‑ranging arguments agitated in this case in relation to the second category of challenged laws. Nevertheless, adherence to the established requirements as to standing is generally apt to improve the quality of judicial decision‑making by ensuring that the focus and strength of the arguments advanced by the parties reflect the importance of the prospective outcome for the parties.
Finally at this stage, it may be noted that the plaintiff does not claim a declaration as to his proper sentence were he to commit an offence in circumstances which would attract the operation of the impugned provisions. Such a claim would also be an impermissible request for an advisory opinion. It is inconceivable that a court would entertain a claim for an indication, in advance of the commission of an offence, of the extent of the punishment to be imposed on a person contemplating the commission of the offence. It is not necessary to explore these difficulties further.
It is sufficient here to conclude that the plaintiff lacks standing to seek a declaration that the first category of laws is invalid.
The second category of challenged laws
Sections 60A, 60B and 60C of the Criminal Code
The amendments made to the Criminal Code by the Disruption Act proscribe certain otherwise lawful activities by individuals who are participants in a "criminal organisation".
The defendant does not dispute that these provisions operate to impede the plaintiff in the lawful exercise of his membership of the HAMC. Accordingly, the plaintiff has standing to seek a declaration as to their invalidity, and his challenge is not hypothetical.
To establish a breach of s 60A, the prosecution must prove that the defendant:
(a) was a participant in a criminal organisation;
(b) was present in a public place with two or more other persons who were participants in a criminal organisation; and
(c) knew that those persons were participants in a criminal organisation.
Section 60A(2) provides that it is a defence, to a charge of an offence under s 60A(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."
To establish a breach of s 60B, the prosecution must prove that the defendant:
(a) was a participant in a criminal organisation; and
(b) intentionally entered or attempted to enter a prescribed place or attended or attempted to attend a prescribed event.
Section 60B(4) provides that:
"prescribed event means an event declared under a regulation to be a prescribed event.
prescribed place means a place declared under a regulation to be a prescribed place."
It may be noted that the clubhouse of the HAMC is a prescribed place.
Section 60B(3) provides for a defence to a charge under s 60B(1) or (2) in terms similar to s 60A(2).
To establish a breach of s 60C, the prosecution must prove that the defendant:
(a) was a participant in a criminal organisation; and
(b) intentionally recruited or attempted to recruit another person to become a participant in a criminal organisation.
Section 60C(2) provides for a defence to a charge under s 60C(1) in terms similar to s 60A(2).
Section 60A(3) provides the following definitions for the purposes of ss 60A, 60B and 60C:
"member, of an organisation, includes an associate member, or prospective member, however described.
participant, in a criminal organisation, means -
(a) if the organisation is a body corporate - a director or officer of the body corporate; or
(b) a 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; or
(c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or
(d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or
(e) a person who takes part in the affairs of the organisation in any other way;
but does not include a lawyer acting in a professional capacity."
For the purposes of ss 60A, 60B and 60C of the Criminal Code, the term "criminal organisation" is defined by s 1 of the Criminal Code 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."
By s 70 of the Disruption Act, Sched 1 was declared to have effect to make the Criminal Code (Criminal Organisations) Regulation 2013 a regulation under the Criminal Code. The HAMC is one of 26 entities declared by Sched 1 to be a criminal organisation.
Section 708A(1) of the Criminal Code, inserted by the Disruption Act, provides that:
"In deciding whether to recommend an amendment of the Criminal Code (Criminal Organisations) Regulation 2013 to declare an entity to be a criminal organisation, the Minister may have regard to the following matters -
(a) any information suggesting a link exists between the entity and serious criminal activity;
(b) any convictions recorded in relation to -
(i) current or former participants in the entity; or
(ii) persons who associate, or have associated, with participants in the entity;
(c) any information suggesting current or former participants in the entity have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not the involvement has resulted in any convictions);
(d) any information suggesting participants in an interstate or overseas chapter or branch (however described) of the entity have as their purpose, or 1 of their purposes, organising, planning, facilitating, supporting or engaging in serious criminal activity;
(e) any other matter the Minister considers relevant."
For the purposes of s 708A, the term "serious criminal activity" is defined by s 6 of the Criminal Organisation Act 2009 (Q) ("the CO Act") as meaning:
"(a) a serious criminal offence; or
(b) an act done or omission made outside Queensland, including outside Australia, that, if done or made in Queensland would have been or would be a serious criminal offence."
The expression "serious criminal offence" is defined in s 7 of the CO Act as an indictable offence punishable by at least seven years' imprisonment or an offence against either the CO Act itself or certain specified provisions of the Criminal Code.
The defence provided by each of ss 60A(2), 60B(3) and 60C(2) requires proof that the organisation in question does not have, as one of its purposes, "the purpose of engaging in, or conspiring to engage in, criminal activity." It does not refer to "serious criminal activity". The expression "criminal activity" is not defined in the CO Act or the Criminal Code; but it would naturally be read as referring to specific criminal offences.
The breadth of these provisions
The plaintiff emphasised the novelty and broad reach of these laws. It suited the plaintiff's forensic strategy to emphasise the novelty and breadth of operation of these provisions, especially the definition of "participant" and the power to declare a group of persons to be a criminal organisation. That strategy may have been based upon an assumption that the greater the extent of these novel intrusions into the liberty of the subject appeared to be, the stronger would become the prospect of their being held to be invalid.
One difficulty with the plaintiff's strategy is that merely to point out the severity of the laws is not to articulate the connection between the novelty and breadth of the second category of impugned laws and the engagement of the Kable principle. A further difficulty involved in this aspect of the plaintiff's argument is that it urges a wider operation for these laws than would ordinarily be accorded to penal legislation which interferes with basic common law freedoms. It might be expected that in a setting of greater "concrete adverseness" than obtains in the present case - for example, in a case in which a defendant was actually charged with a contravention of one of the impugned laws - a sharper focus would be brought to bear in the interests of the defendant. In this hypothetical scenario, the defence would, no doubt, urge a narrower view of the construction of these laws than was urged by the plaintiff in the present case, where there was no immediate prospect of substantial adverse consequences from the rejection of his expansive view of the legislation. The defence might also be expected to argue that provisions not bearing on the particular contravention charged would be severable if invalid, and therefore that questions as to their validity do not arise on the hearing and determination of that contravention.
The plaintiff suggested, for example, that the spouse or child of a member of the HAMC who attended more than one meeting of members would thereby become a "participant" for the purposes of s 60A by reason of the wide definition of "participant" in par (d) in s 60A(3). This suggestion is arguably incorrect. A person becomes a participant by reason of this particular definition only if he or she "has attended more than one meeting of persons who participate in the affairs of the entity in any way". It is arguable that a person does not become a participant, under this definition, merely by meeting "other persons who participate in the affairs of the entity"; rather, it would seem, the definition contemplates that a participant is a person who attends the meetings as one of the persons who, together, participate in the affairs of the entity. However that may be, there can be no doubt that these provisions are capable of having a wide operation which might be thought to be unduly harsh.
Thus, it is arguable that a person who has attended more than one such meeting is "marked for life" as a participant, even though the person ceased to be a member long before committing the acts which lead to a charge. And to the extent that three or more members of the HAMC may have been present in court for the hearing of the arguments in this case, it might be argued that they have contravened s 60A(1), if they were unable to make out the defence in s 60A(2). That may well be thought to be an odd and undesirable outcome. On the other hand, it must also be said that, so far as the Kable principle is concerned, that outcome would be a consequence of the enforcement of the legislation by ordinary judicial processes, not some extraordinary imposition upon the judiciary.
A further concern raised in the course of argument was that the already wide reach of the challenged provisions might be expanded even further by the executive government's use of its regulation‑making power under s 708 of the Criminal Code to declare a wide range of associations to be criminal organisations. According to this argument, the power to declare an entity to be a criminal organisation is not confined by s 708A(1) to those associations believed by the executive government to be engaged in serious criminal activity. This argument, which derives from the apparently open‑ended language of s 708A(1)(e), raises the concern that an association whose purposes include the active pursuit of political objectives, which might in turn involve agitation leading to breaches of laws designed to preserve public order, might be declared to be a criminal organisation.
One possible answer to the concern raised by this hypothetical argument depends on the proper construction of the provisions which empower the executive to declare a group of individuals to be a criminal organisation. In a case where a person was actually charged with a contravention of s 60A, one would expect the defence to urge that the context in which ss 708 and 708A(1)(e) appear confines the power to declare a group of persons to be a criminal organisation to those associations whose activities are believed by the Minister to be connected to serious criminal offences, as distinct from lesser offences, such as regulatory offences against public order. There would be some force in such an argument.
Considerations of context support the narrower view of the regulation‑making power. The matters to which the Minister may have regard under s 708A, in deciding whether to declare an entity to be a criminal organisation, are all, with the exception of s 708A(1)(b) and (e), expressly concerned with the Minister's apprehension of connections between the entity and "serious criminal activity", which, as noted above, is defined in such a way that regulatory offences are not included. It might be argued that the scope of s 708A(1)(b) and (e) is informed by the other paragraphs of s 708A(1) so that the Minister may take into account only apprehended connections between the entity and serious criminal activity. It is also significant that these provisions are to be found in the Criminal Code.
The context for the regulation‑making power in s 708A also includes par (a) of the definition of "criminal organisation" in s 1 of the Criminal Code. That definition would be applied at a trial of a person for an offence under ss 60A, 60B and 60C unless an organisation had already been declared to be a criminal organisation. Paragraph (b) of the definition refers to a declaration to that effect made by a court under s 10 of the CO Act. Section 10(1) of the CO Act requires that a court making such a declaration be satisfied that the purpose for which members of the organisation associate is to engage in serious criminal activity and that the organisation represents an unacceptable risk to the safety, welfare and order of the community. Whilst not in terms identical to par (a) of the definition, s 10(1) of the CO Act reflects essential aspects of the par (a) definition. Consistently, any declaration made by regulation, to which par (c) refers, would also be informed by such considerations.
If the hypothesised offences against public order contemplated by this argument were only regulatory offences, as opposed to serious criminal offences, the entities in question would not be within the regulation‑making power. This would be because there would be no apprehended link between the entity and serious criminal offences. In this regard, s 2 of the Criminal Code provides that "[a]n act or omission which renders the person doing the act or making the omission liable to punishment is called an offence." Section 3(1) of the Criminal Code provides that offences are of "2 kinds, namely, criminal offences and regulatory offences." If the activity in question were a regulatory offence, rather than a criminal offence, it would be arguable that that activity is not criminal activity, much less serious criminal activity, and so the entity is outside the scope of the power to declare an entity by regulation to be a criminal organisation. The argument in support of this narrower view would be supported by the consideration that the right of free association under the common law should not be limited save by clearly expressed legislative intention.
There is force in the arguments for the narrower view of the regulation‑making power. One would not readily accept that a Minister who disapproved of Catholicism could rely upon his or her subjective view that that was "a relevant matter", in some general way unconnected to serious criminal activity, to justify the making of a declaration that either the St Vincent de Paul Society or the Knights of the Southern Cross is a criminal organisation.
And finally in the hypothetical scenario under consideration, it is inconceivable that an issue would not be raised by the defence as to the invalidity of the declaration based on the limitation on executive and legislative power implied by the freedom of communication and association on matters of political and governmental interest. As noted above, this issue was not agitated in this case.
It does not advance the plaintiff's case to resolve these hypothetical arguments. It is not necessary to resolve these arguments in this case because they do not afford a basis to impugn the validity of the challenged laws in terms of the Kable principle. It may be accepted that the possible reach of these provisions is very wide, and even that their operation may be excessive and even harsh. But as was explained in Magaming v The Queen, to demonstrate that a law may lead to harsh outcomes, even disproportionately harsh outcomes, is not, of itself, to demonstrate constitutional invalidity. It is necessary to articulate the connection between these laws and the engagement of the Kable principle. It is also necessary to bear in mind that the Kable principle is concerned to preserve the integrity of the judicial function.
The second category of laws do not, in terms, advert to the performance of any judicial function. The plaintiff's attempt to articulate the necessary connection may be considered under the headings: enlisting judicial power, cloaking, and usurpation of judicial power. They may now be considered in turn.
Enlisting judicial power
The plaintiff contended that, while Parliament has not directly outlawed or disestablished criminal organisations, the courts have been enlisted to give effect to that intention, and, in this way, the Kable principle has been engaged.
It must be said immediately that, so framed, the plaintiff's contention is too broad. That the legislature's policies inform the laws which it passes does not mean that the court's enforcement of those laws is incompatible with its institutional integrity. As French CJ observed in Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment:
"All legislation reflects policies attributable to the legislature but, in many if not most cases, they are policies originating with the executive government as the proponent of most statutes enacted by the parliament."
In the same case, Heydon J said:
"In a system of responsible government, all legislation enacted substantially in conformity with a Bill presented to the legislature by the Executive may be said to 'give effect to … government policy dictated by the executive'. Most legislation is of that kind ... Once that 'policy' is reflected in statutes and regulations, it is binding as a matter of law. The judicial branch of government declares and enforces the law. In that sense, the judiciary gives effect to government policy dictated by the Executive. If the Kable statements invalidate legislation giving effect to government policy on that ground alone, they are wrong for that reason. They do not."
The plaintiff did, however, present a more focused submission in relation to enlistment of judicial power, arguing that the laws in question are analogous to the law considered in South Australia v Totani. In that case, as in this, the impugned legislation did not seek to outlaw particular organisations or kinds of organisations. Beyond this point of similarity, however, the analogy breaks down.
In Totani, this Court held that s 14 of the Serious and Organised Crime (Control) Act 2008 (SA) ("the SOCC Act") was invalid. That provision required the Magistrates Court, upon application by the executive government, to make a control order if it was satisfied that the individual, the subject of the application, was a member of a declared organisation. The SOCC Act itself specified the terms of the control order. These included strict restrictions on association with other members. The SOCC Act provided criminal sanctions for a breach of a control order. There was no scope for the Magistrates Court to determine whether the restrictions were appropriate to the individual subjected to a control order: membership alone was sufficient to require the imposition by the Court of the restrictions upon the individual's liberty specified by the Act.
The judgments of the members of the majority in Totani identified the vice of s 14 of the SOCC Act, in terms of the Kable principle, as the requirement that the Magistrates Court create new norms of conduct the content of which was determined by the executive and legislature, and which restricted the liberty of the subject (over and above the norms binding the public under the general law), without any inquiry by the Court into past or threatened contraventions by the individual of any existing legal norm. The Court was called upon to implement, under the forms of judicial process, an executive judgment to restrict the liberty of any person who was a member of a declared organisation. It was this combination of features which warranted the description of s 14 of the SOCC Act as a provision which sought to enlist the Court to implement the policy of the executive and legislature under the guise of judicial determination.
Sections 60A, 60B and 60C of the Criminal Code do not require a court to lay down new norms of conduct. The new norms of conduct are created by the legislature anterior to the performance of the judicial function. Sections 60A, 60B and 60C do not require a court to perform any function other than a characteristically judicial function. They do not require a court to give effect to an executive or legislative decision to subject a given individual to new norms of conduct, much less that it should do so independently of the contravention of existing norms. They require the court to find facts and impose punishment as a result of the contravention of norms of conduct laid down by the legislature. That is not unorthodox: it is at "the heart of judicial power" to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make an order as to the consequences which the law imposes by reason of that conduct.
The processes which characterise the judicial function have been usefully, though not exhaustively, summarised as:
"open and public enquiry … the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts".
These laws do not authorise or require a court to depart from these characteristic processes of the judicial function.
Cloaking
It is also necessary to bear in mind that the rationale of the Kable principle was identified by Gummow J as being "to forestall the undermining of the efficacy of the exercise of the judicial power of the Commonwealth." His Honour went on to explain by reference to United States authorities the concerns addressed by the principle. These include, importantly, the concern that the legitimacy of the judicial branch of government, which "ultimately depends on its reputation for impartiality and nonpartisanship", should not be undermined by the political branches of government borrowing that reputation "to cloak their work in the neutral colors of judicial action."
These laws do not purport to "cloak the work of the legislature or executive in the neutral colours of judicial action". To the contrary, it is abundantly clear that the responsibility for any perceived harshness or undue encroachment on the liberty of the subject by these laws lies entirely with the political branches of government.
The public acceptability of these laws is in no way shored up by camouflaging legislative responsibility "in the neutral colours of judicial action". The only judicial activity which attends the enforcement of these laws is the characteristically judicial process of a criminal trial, upon which these laws do not trench.
It makes no difference to this conclusion that these laws operate as part of a package calculated to destroy organisations such as the HAMC. Whether a law is invalid by reason of the Kable principle depends on the effect of the law upon the functioning of the courts. Whether considered together or in isolation, these laws are not incompatible with the institutional integrity of the courts. That conclusion cannot be affected by a consideration of whether the judiciary approve or do not approve of the purpose of the laws. In Grain Pool of Western Australia v The Commonwealth, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said that if a law is otherwise within power, "the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice".
Usurpation of judicial power
The plaintiff urged, as an aspect of his challenge to the second category of impugned laws, that members of motorcycle clubs such as the HAMC are branded "criminal organisations" without judicial process. It may be said immediately that this submission sits ill with the plaintiff's emphasis of the point that the laws do not make membership of such an organisation a crime.
As was recently said by French CJ, Hayne, Crennan, Kiefel and Bell JJ in Magaming v The Queen, "adjudging and punishing criminal guilt is an exclusively judicial function." Earlier, in Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ had recognised that:
"legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly".
The power to declare an organisation to be a criminal organisation does not involve an adjudication of criminal guilt; and the declaration of associations as "criminal organisations", whether by the legislature or by the executive, does not involve a usurpation of judicial power. The exercise of the power to declare an organisation to be "a criminal organisation" does not purport to adjudge or punish the criminal guilt of any person; the exercise of the regulation‑making power to declare a group of persons to be a criminal organisation involves no adjudication of rights or duties or liabilities.
As noted above, the tendentious language in which these laws are expressed conceals their true legal effect. The only legal effect of a declaration is to establish an ingredient of an offence, the contravention of which must still be proved in the ordinary way. The argument for the plaintiff confuses the exercise of judicial power with the power of the legislature to impose norms of conduct and to provide for the consequences of breach of those norms. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ explained that "a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function."
Barwick CJ said in Palling v Corfield:
"it is within the competence of the Parliament to determine and provide … a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment."
His Honour added:
"There may be limits to the choice of the Parliament in respect of such contingencies but the nature of the contingency in this case does not require any examination or discussion as to the existence and, if they exist, the nature of such limits."
This case, similarly, does not require such an examination.
The mere circumstance that the stipulated contingency may be established by the opinion of the legislature or executive does not mean that the stipulation is an exercise of judicial power. The plaintiff's argument did not seek to controvert this proposition or to deny the authority of the judicial statements which support it, or to suggest that the Kable principle has somehow outflanked or superseded them. If such an attempt had been made by the plaintiff, it might be expected that the defendant would have responded by pointing out that it has never been suggested that the Kable principle is inconsistent with this proposition or the authorities which support it: it might also have been said that, if there is an inconsistency in this regard between the operation of the Kable principle and these authorities, the problem lies with the propounded application of the Kable principle rather than with authoritative judicial statements that stand unchallenged. Given that the plaintiff's argument did not raise these issues, it is not necessary to speculate on how they might be resolved.
In any event, the declaration that a group of persons is a criminal organisation does not conclusively establish, without judicial process, the nature of the organisation in which the defendant is alleged to be a participant. At this point one must turn to consider the defence provided by each of ss 60A(2), 60B(3) and 60C(2).
The defences
Under these provisions, it is a defence for an accused person to prove that the criminal organisation in question does not have, as one of its purposes, an intention to engage in, or engaging in, criminal activity. Thus, the substantive operation of these laws is confined to cases where the accused is found by a jury to be a participant in an organisation which has as one of its purposes an intention to engage or an actual engagement in criminal activity.
It has long been established that it is within the competence of the legislature to regulate the incidence of the burden of proof of matters on which questions of substantive rights and liabilities depend. Laws which do no more than effect such changes do not "deal directly with ultimate issues of guilt or innocence".
In Orient Steam Navigation Co Ltd v Gleeson, Dixon J said:
"[T]he Parliament may place the burden of proof upon either party to proceedings in a Court of law. The onus of proof is a mere matter of procedure. If the Parliament may place the burden of proof upon the defendant, it may do so upon any contingency which it chooses to select."
To the suggestion that it is harsh to impose a burden on the defendant to prove that the purposes of the organisation did not include a purpose of criminal activity, one may make the same answer as Dixon J gave in Orient Steam Navigation, namely that it "would be no less harsh if the burden of proof upon a charge … were unconditionally placed upon the defendant."
In Nicholas v The Queen, Brennan CJ identified a qualification upon the power of the legislature to regulate the incidence of the burden of proof:
"The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates." (emphasis added)
It may be accepted that the "reasonable approach" adverted to by Brennan CJ would be absent where the statutory reversal of the burden of proof entailed "a moral impossibility" of the defendant obtaining the evidence necessary to establish a defence. But it was not explained how a prosecution under these laws would give rise to the moral impossibility of a defendant adducing exculpatory evidence.
In the absence of such an explanation, it seems distinctly unpersuasive to suggest that a defendant would find himself or herself in an "impossible" position in a case where the prosecution relies solely upon a declaration by legislation or regulation that an organisation is a criminal organisation in order to prove this element of the charge. It needs to be kept in mind that the declaration does not create a presumption that one or more of the organisation's purposes involve serious criminal activity. As earlier explained, the purpose of an organisation is a matter which should inform the making of a declaration by regulation (or by statute). However, a declaration so made is not to be equated with a presumptive finding of that fact.
In such a case, evidence from the defendant or his or her witnesses to the effect that, to his or her knowledge, the activities of the association were entirely innocent would, if left uncontradicted by the prosecution, support the inference 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 this hypothetical case, the only evidence before the court of the only purposes of the association would be those purposes which could be inferred from the activities of the association of which the defendant gave evidence. On this hypothesis, there would be no evidence to contradict that of the defendant. It is necessary to bear in mind as well that the defendant's burden is discharged on the balance of probabilities.
Of course, the prosecution might not be content to rely upon the declaration, and might itself adduce evidence of the purposes of the association. But in such a case, the question of guilt or innocence would still depend on the curial evaluation of the evidence, not some presumptive effect of the declaration.
The Liquor Act
The Liquor Act was amended by the Tattoo Parlours Act 2013 (Q) to include provisions which place restrictions on persons in a "declared criminal organisation".
Section 173EB of the Liquor Act prohibits a licensee from knowingly allowing entry of a person wearing or carrying certain items onto licensed premises. Section 173EC prohibits the wearing or carrying of such items on premises licensed under the Liquor Act where those items are apparently linked with a declared criminal organisation. Section 173ED empowers a licensee to require a person wearing or carrying such an item to leave licensed premises and makes failure to comply an offence.
For the purposes of these provisions, s 173EA provides:
"In this division -
declared criminal organisation means an entity declared to be a criminal organisation under the Criminal Code, section 1, definition criminal organisation, paragraph (c).
prohibited item means an item of clothing or jewellery or an accessory that displays -
(a) the name of a declared criminal organisation; or
(b) the club patch, insignia or logo of a declared criminal organisation; or
...
(c) any image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or an association with, a declared criminal organisation, including -
(i) the symbol '1%'; and
(ii) the symbol '1%er'; and
(iii) any other image, symbol, abbreviation, acronym or other form of writing prescribed under a regulation for this paragraph."
As to the significance of the "1%" logo, it may be noted that, according to a report of the Australian Crime Commission referred to in the special case, outlaw motorcycle gangs identify themselves as the "one percenters" who operate outside the law.
The special case refers to findings by a Canadian court that the wearing of the HAMC patch not only guarantees that a person is a member of the HAMC and not the police, it allows members of the HAMC to intimidate, threaten and extort other persons.
The Kable principle is not a limitation on the competence of a State legislature to make laws of general application to determine what acts or omissions give rise to criminal responsibility. Sections 173EB, 173EC and 173ED of the Liquor Act are laws of general application. The concept of "declared criminal organisation" used in these provisions has no operative effect other than to identify items of clothing or jewellery as "prohibited items". The kinds of clothing or jewellery which are "prohibited items" may be fixed by regulation. That circumstance is not an intrusion upon judicial power.
Laws of this kind are not novel. It is significant that no concern has previously been raised as to their compatibility with the integrity of the judicial function. These provisions do not require a court to act as an instrument of the executive. They are not analogous to the law invalidated in Totani.
The third category of challenged laws: the Bail Act
Under s 16(1) of the Bail Act, if the court is satisfied that there is an "unacceptable risk" of particular matters, the presumption in favour of bail in s 9 of the Bail Act is rebutted.
As a result of amendments made by Pt 2 of the Disruption Act, s 16(3A) relevantly provides:
"If the defendant is charged with an offence and it is alleged the defendant is, or has at any time been, a participant in a criminal organisation, the court or police officer must -
(a) refuse to grant bail unless the defendant shows cause why the defendant's detention in custody is not justified".
Prior to the amendments in question, s 16(3) of the Bail Act identified a number of circumstances in which a court is directed to refuse an application for bail unless the defendant shows cause why his or her detention in custody is not justified. Section 16(3A) added the circumstance that it is alleged that the defendant is a participant in a criminal organisation. But it remains the case that a defendant may obtain a grant of bail by satisfying the court that the risk that he or she will fail to answer his or her bail is not unacceptable.
There is no basis for concluding that the plaintiff is affected in his rights or interests by the new provisions. His legal position would not be altered if these provisions were held to be invalid. He has not committed any offence. He is not an applicant for bail. It cannot be assumed that he will commit an offence, and so become an applicant for bail. Accordingly, the plaintiff has no standing to seek a declaration that these provisions are invalid.
Conclusion
The questions posed for determination by the Court should be answered as follows:
- 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 to 173ED) is invalid?
Answer: No.
- 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 to 173ED) hypothetical?
Answer: It is unnecessary to answer this question.
- 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.
- 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