Validity of Anti-Biker Laws Upheld by the High Court


The High Court recently dismissed a challenge to the Vicious Lawless Association Disestablishment Act, upholding its validity.

The decision is the latest in a long running saga between the United Motorcycle Council and State governments.

Governments have passed various pieces of legislation aimed at dismantling the operations of motorcycle gangs after a number of violent incidents, including the Sydney Airport brawl in 2009 between members of rival clubs the Hells Angels and Comancheros.

Following a similar brawl on the Gold Coast last year, the Vicious Lawless Association Disestablishment Bill was introduced in October 2013 by the Newman government.

The United Motorcycle Council, which represents 17 motorcycle clubs in Queensland, challenged the legislation contending that it was unconstitutional as it impinges upon freedom of speech and the right to associate.

However, the High Court found that Stefan Kuczborski, a member of the Hells Angels who brought the action, did not have “standing” as he had not been charged with, and had not committed, any offence under the laws.

Essentially, the law says that persons wishing to bring an action in the High Court must have a “special interest” in the subject of the dispute.

The logic behind this is that courts should only attempt to settle disputes between parties where each of them has a “direct stake” in the outcome of the case.

This also prevents courts from becoming clogged by persons wishing to bring about actions in cases which do not directly concern them.

There are no explicit rules to determine standing for the subject legislation, so whether a person will able to bring an action is decided on a case by case basis.

The High Court decision heightens concerns that the laws will be applied in a manner that discriminates unfairly against bikers.

The legislation imposes onerous limitations on persons deemed to be “vicious lawless associates.”

A “vicious lawless associate” is a member of a “relevant organisation” who has committed a “declared offence” in the course of participating in the affairs of the relevant association.

The Act contains a full list of “declared offences,” which range from offences such as affray all the way up to serious sex offences and murder.

A “relevant association” is simply any organisation, club or group of three or more persons – whether or not the association engages in illegal activity.

The term isn’t only limited to biker clubs – the new laws are so broad that they capture any type of group or organisation, even sports groups and other community clubs.

Under the Act, persons deemed to be vicious lawless associates are subject to onerous penalties and provisions.

For example, where a vicious lawless associate is found guilty of a “declared offence,” the court must impose a mandatory 15 years imprisonment on top of the penalty for that offence.

There are no provisions under the Act for these harsh sentences to be reduced or mitigated in any way.

This is despite offences such as affray (which is a “declared offence” under the Act) which are generally dealt with by non-custodial measures such as good behaviour bonds and community service orders.

Furthermore, vicious lawless associates are not eligible for parole at any time during the mandatory sentence.

This means that they will serve the whole of a sentence imposed by a court in prison.

These are obviously onerous measures which will have a devastating impact on persons convicted under the new regime, as well as their loved ones.

There have also been concerns that the legislation stigmatises bikies by deeming them “vicious lawless associates” – a term which many feel carries negative connotations.

Indeed, the High Court on Friday criticised the wording of the legislation, labelling it “rhetoric.”

However, aside from this criticism, the Court upheld the legislation and considered its provisions a valid exercise of court power.

Therefore, despite the concerns of the public and affected organisations, it seems that the legislation is here to stay for now – although various motorcycle clubs have vowed to continue fighting the laws.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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