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Queensland Bikies Lost Their High Court Challenge but Who Won?

Hells Angel Stefan Kuczborski lost his challenge against his state's tough anti-bikie laws. We look at what the ruling means.
December 12, 2014, 1:06am
Image by Roy Lister

​Back in March, Hells Angel Stefan Kuczborski launched a High Court challenge to Queensland's Vicious Lawless Association Disestablishment act (VLAD). More commonly known as the anti-bikie laws, Stefan's challenge was backed by a national coalition of motorcycle clubs.

Among other things, VLAD restricts the movements of bikies and associates by making it an offense for them to knowingly gather publicly in groups of more than two, as seen with the ​Yadina 5 in January this year. It also dictates harsher mandatory sentences for criminal offenses committed by bikies, than those committed by members of the general public.

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VLAD came in response to ​growing concerns over outlaw motorcycle gangs around Australia but many observers see the laws as heavy handed and potentially unconstitutional. That hasn't stopped other states from expressing desires to enact similar laws at home. This last fact made the outcome of Stefan's court case a national story, with a win or a loss determining the spread of VLAD ​around the country.

Stefan lost. On the eve of the G20, while most reporters were looking elsewhere, the High Court came back with a decision, ​rejecting the constitutional challenge.

But was it a win for the Queensland government? Well not quite.

The High Court refused to consider the validity of the VLAD laws on the basis that Stefan had no standing to do so. Kuczborski had not been charged under the VLAD legislation and therefore had insufficient interest to challenge them. Standing, a legal term, is what is distinguishes public law from private law. It acts as a pest filter to prevent unaffected parties from challenging government decisions.

In other words, the debate over VLAD's constitutionality was never entered into.

Despite the challenge being rejected, organized crime expert, Associate Professor Mark Lauchs from the Queensland University of Technology, says the judgement actually puts the bikies in a plum position.

The VLAD legislation hinges on the declaration of 26 motorcycle clubs as criminal organisations. This means members can't meet in public or display their club colours. The declarations were made under the direction of the Queensland Attorney General, Jarrod Bleijie, his decisions allegedly backed by secret intelligence gathered by authorities.

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Mark, who works out of QUT's School of Justice and Faculty of Law, told VICE the court's interpretation of the VLAD legislation effectively renders the Attorney General's declaration meaningless.

"The fact that Jarrod Bleijie declares an organisation to be a criminal organisation has no effect on anything unless someone's charged with an offence where the declaration will aggravate the offence."

What Mark is saying is this: if three Hells Angels meet in a pub, they can be arrested under VLAD's anti-association laws. For them to be jailed however, prosecutors will still have to prove each time that the Hells Angels is a criminal organisation, despite the Attorney General's claims that they are.

The High Court says courts have discretion to decide out if a club is criminal. Proving criminality is historically difficult. As Mark points out, "no one in the world has ever been able to go to court and prove that any bikie gang is a criminal organisation."

Criminal cases that could have been impacted by VLAD were put on hold pending the High Court challenge. Mark says the case to watch now will be the one against three Rebels members who ​allegedly bashed a motorcyclist for wearing a leather jacket without the club's permission. If found guilty they could theoretically attract an extra 10 years under the VLAD legislation. However, if they can prove they're not in a crime gang, they'll dodge the jackpotted sentence.

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"They don't even have to go to the High Court over it," said Mark. "They can simply sit in the trial court and say 'I'm guilty' and when it comes to the sentencing their lawyers will get up and say 'well hang on that 10 years doesn't apply here because I can show that this isn't a criminal organisation.'"

The bikies for their part ​say they will launch another challenge but Mark says they don't really need to. If the government tries to take away the courts' discretion to decide on the criminality of a club, they run the risk of another challenge and the likelihood the High Court will deem the laws unconstitutional.

"I think they have already got themselves into a good position, (Campbell) Newman was shocked to see it went through without a change. I think they thought they were going to get 75 percent of it through and now they're going shit what are we going to do now."

However Attorney General Jarrod Bleijie told VICE he welcome the High Court's decision to uphold Queensland's anti-criminal gang laws.

"From day one, the Government has made it clear that these laws only target members of criminal organisations."

Follow Lauren on Twitter: ​@theljg