AUSTRALIA - Bikies plan new VLAD law challenge

OFF THE WIRE
Queensland's bikie gangs are already planning their next move against the government's anti-association and VLAD laws.

Queensland United Motorcycle Council spokesman Mike Kosenko said the group had been "overwhelmed" with offers from the legal community to take up the case, after the High Court ruled Hells Angels member Stefan Kuczborski had no standing to challenge the VLAD laws last week.

It also ruled that the anti-association laws, which are now being examined by first law officers across the nation for their own jurisdictions, could stand.

The government welcomed the decision, which arrived on the eve of the G20.

"These laws are strong, they are effective, they are working, they protect Queenslanders and they have been upheld by the highest court in the land," Premier Campbell Newman said last Friday.

"... There are a few things in the decision and of course we are examining that. What has been upheld is, for example, the anti-association elements. And that is a very important part of the decision. 

"I say to you that people have rights under the law to explore other alternatives that has always been the case but the anti-association elements have been upheld which is an interesting decision by the court as well to go that bit extra, to get behind those parts of these strong measures."

But Mr Kosenko said the government should not get too excited.

"We have had some very positive feedback from a lot of different lawyers," he said.

"It is almost like they are getting in line wanting to represent us. Everyone wants to be a hero at the end of the day, I think.

"There are already a lot of people who have been charged [under VLAD] – and we are going through the best candidates. It won't be just one, there will be a couple. It will probably be a female and some people who aren't even associated with bike clubs [who form the basis of the next challenge]."

Barrister Wayne Baffsky, the honorary legal counsel for the UMC in both New South Wales and Queensland, said the High Court result had left room to move.

"Unfortunately when we filed the appeal and the appeal came up for hearing, there was no one who had been charged under those acts, or was seeking bail at the time," he said.

"So there was nobody with standing, anywhere in Queensland, at the time, that could have been used as a vehicle for the High Court challenge."

Mr Kuczborski's counsel had challenged the anti-association aspects of the legislation using the Kable doctrine, a precedent named after a New South Welshman, Gregory Wayne Kable, who had been sentenced to five years imprisonment in 1989. 

The then NSW parliament had passed legislation to keep Kable in prison longer, but the High Court struck down the legislation as invalid and unconstitutional. That ruling relied on a central doctrine - which became known as the Kable doctrine - that "the Parliaments of the States may not legislate to confer powers on State courts which are repugnant or incompatible with their exercise of the judicial power of the Commonwealth".

The High Court found that did not apply in the case of the bikie law challenge. But Mr Baffsky said the challenge could be "re-brought with either other arguments, or perhaps even another version of the Kable argument".

"I wouldn't be crowing about a victory if I was in the state government, because there is more than one way of looking at this and the fact that we didn't succeed on standing, is not because of anything the Queensland government did, but because no one had actually been charged under the VLAD act or those sections of the criminal code – so there was no one available to us," he said.

"And in so far as the other one, that was one argument only. There are other arguments which had been in the initial application, which can be re-used.

"So the question is still open.

"... The battle is certainly not over. There are other options, none quite like a High Court appeal, but there are other options and all those options are being considered. This is too important an issue for defeat to be accepted, this is an issue that will keep going on, because it is our rights which are at stake."

The government, in anticipation of legal challenges, has previously vowed to continue to re-write the laws if they were struck down by the courts.

http://www.brisbanetimes.com.au/queensland/bikies-plan-new-vlad-law-challenge-20141120-11qvca.html#ixzz3Jkn1ShEa