Kuczborski v The State of Queensland [2014] HCATrans 146 (27 June 2014)

Last Updated: 27 June 2014

[[2014] HCATrans 146

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

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK AT BRISBANE

ON FRIDAY, 27 JUNE 2014, AT 10.33 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: If your Honour pleases, I appear on behalf of the plaintiff. (instructed by Irish Bentley Lawyers)

HIS HONOUR: Mr Fleming, the Court was here on time, but you were not. I do not expect counsel to be late for these matters.

MR FLEMING: I apologise profusely, your Honour. I was running from the Chief Justice’s valedictory.

HIS HONOUR: Yes, well, you had a directions hearing in the High Court.

MR FLEMING: Yes, thank you.

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the defendant State of Queensland. (instructed by Crown Law (Qld))

HIS HONOUR: Yes, Mr Fleming.

MR FLEMING: Thank you, your Honour. Your Honour, we have no significant issue with the minutes that have been presented. I understand our learned friend wants to add different additional material into the case stated. We may then reply, if we may, at that point because in the case stated there are a number of issues about which we have concern, including the material that they sent to us yesterday again.

HIS HONOUR: Yes, but before we move to that, I notice there is a letter to, I think, a Mr Summers which is exhibited to an affidavit by Ms Nagorcka of the Crown Solicitor’s Office in relation to the draft minutes raising a number of issues, one of which I think relates to the question of standing.

MR FLEMING: Yes.

HIS HONOUR: And some concessions which I think are set out – as to standing which were set out in a letter dated 20 June.

MR FLEMING: Yes. Our learned friends are making those concessions.

HIS HONOUR: Yes.

MR FLEMING: We do not have an issue with that.

HIS HONOUR: All right, so that would simply affect the framing of 1.1. Now, one of the questions that does arise is as to whether the relief sought is hypothetical. Does that question differ, on your submission – I will hear obviously from the Solicitor-General on that in a moment – from the question of standing?

MR FLEMING: We would suggest not, your Honour. I know that it was separated out in Croome to some degree, but it did not seem to make all that much difference in Croome.

HIS HONOUR: In the special case – I may be mistaken but I do not think there is any reference to the declaration referred to in the amended writ and statement of claim of the association as a criminal organisation.

MR FLEMING: There is certainly no reference to the declaratory relief sought. Your Honour is right.

HIS HONOUR: No, I am not talking about the relief sought. I am talking about the assertion – the declaration which is referred to, I think, at paragraph 3 of the amended statement of claim that the:

Club is declared to be a “criminal organisation” by the Crime and Misconduct Regulation 2005, first as s.70 and Schedule 1 of the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, and then by that section, making the said Schedule a Regulation of the Criminal Code.

MR FLEMING: Yes, in our submission that is an oversight, your Honour, and it should go in.

HIS HONOUR: So the special case would have to be amended to include, on your submission, the fact asserted in paragraph 3 of the amended statement of claim?

MR FLEMING: Yes, your Honour.

HIS HONOUR: Now, are there any other factual matters presently not included in the statement of claim which you contend ought to be, or is that settled as it was before Justice Keane?

MR FLEMING: We are content with those amendments, your Honour, that we have just discussed.

HIS HONOUR: In addition, the defendant in the most recent correspondence I think has proposed some changes to the timetable set out in the draft minute. Do you have any difficulty with any of those changes or any comment on them?

MR FLEMING: Your Honour, the plaintiff’s submissions, I think, are due on the - - -

HIS HONOUR: If one looks at the letter to Mr Summers dated today’s date – dated 27 June, under the heading “Timetable” - - -

MR FLEMING: Yes, paragraphs 4 and 5 - - -

HIS HONOUR: I think the day of the week was wrong in 4, 5 and 6.

MR FLEMING: Yes, your Honour, that is right.

HIS HONOUR: Yes, that should be Wednesday in each case. Well, you do not have any difficulty with that. Then item 4 in the letter says:

As the timetable currently stands, the defendant has two weeks from due date for the plaintiff’s submissions in which to file and serve its submissions, but the plaintiff has four weeks from the due date of the defendant’s submissions in which to file his reply. Paragraph 5 should be amended to provide for the defendant’s submissions being due on Wednesday 6 August 2014.

Do you have any difficulty with that?

MR FLEMING: No, we do not have difficulty with that.

HIS HONOUR: All right. Then, I think the next item, item 5 of the timetable:

the plaintiff’s reply is due on 27 August 2014, less than one week . . . Paragraph 7 should be amended to provide for the plaintiff’s reply being due on Friday 22 August 2014.

Do you have any difficulty with that?

MR FLEMING: We have a little difficulty with that, your Honour, but I am sure we can meet that.

HIS HONOUR: Friday, 22 August, all right.

MR FLEMING: Yes.

HIS HONOUR: Now, under the heading “Special Case” it is said:

Paragraphs 18 and 19 of the Special Case . . . may be removed as they are now irrelevant (they relate to the Tattoo Parlours Act).

Do you agree with that?

MR FLEMING: Your Honour, the only way in which we say they are relevant is in respect of the first question and that is in respect of the right – I am sorry, the second question, 1.2, “implied freedom of association”.

HIS HONOUR: Yes.

MR FLEMING: That is the only basis upon which we can support that.

HIS HONOUR: You say that the fact that you are a self-employed tattooist, you have worked in the tattoo industry and you intend to apply for a tattooist licence and claim that you meet the criteria for the grant of such a licence is relevant to the question whether the other legislation infringes your implied freedom of association?

MR FLEMING: Yes, your Honour, that is the only case upon which we can say that should be left in. We take it no further than that.

HIS HONOUR: Well, I want to know are you going to mount an argument that those facts in 18 and 19 are relevant to your contentions about the implied freedom of association?

MR FLEMING: We were going to, your Honour, but we can see the weakness of that argument.

HIS HONOUR: Do you concede that they should be removed?

MR FLEMING: Yes, your Honour.

HIS HONOUR: All right. Then it said:

Paragraph 12 of the Special Case should be amended to include a redacted version of the document referred to in that paragraph as an annexure to the Special Case.

This is a reference to - - -

MR FLEMING: This is the reference to the Crime and Misconduct research, your Honour.

HIS HONOUR:

the intelligence regarding criminal motorcycle gangs was reflected in a Crime and Misconduct Commission document entitled ‘Current and Emerging Issues Report –

et cetera. Now, if I can put it this way, whose fact is that? In other words, are you asserting that fact?

MR FLEMING: No, we are not, your Honour.

HIS HONOUR: Yes. Well, I had better ask the Solicitor-General in due course about the relevance of that. Item 8 in the letter talks about bringing the question of hypothetical – whether the relief is hypothetical, adjacent, as it were, to the question of standing, but that may depend upon whether those two questions collapse into each other. I imagine you would not have any difficulty about the location of that question if it is to be included.

MR FLEMING: Not at all, your Honour.

HIS HONOUR: Now, the other question it is said should be put in, and I imagine you would have no difficulty with is who should pay the costs of the special case.

MR FLEMING: We have no difficulty with that question, your Honour.

HIS HONOUR: Yes, okay. All right, now are there any other submissions that you would make in respect of the proposed draft directions?

MR FLEMING: No, not in respect of the draft directions.

HIS HONOUR: I have a couple of points I just wanted to raise myself on reviewing the draft. Just to clarify, paragraph 11, if you can go to that – this is about the format of the written submissions.

MR FLEMING: Yes, your Honour.

HIS HONOUR: You will note that in paragraph 10:

The plaintiff and the defendant are each to set out in their submissions in chief a succinct statement of the use each seeks to make of such of the factual matters set out in the Special Case as it relies upon and the use which it submits that the Court should make of any other factual matters set out in the Special Case.

That is inserted because I think it is going to be very important to have some clarity about just what way the parties are suggesting those factual matters should be used, having regard to the disclaimers about their truth and relevance which also appear in the special case. But in paragraph 11, I was proposing that that should be slightly revised to read “Subject to the preceding direction” – that is the paragraph 10 – “which only applies to the plaintiff and the defendant, all parties are to organise their written submissions in chief according to the topics which they wish to address dealing completely, under each topic heading” et cetera. That is just to accommodate the position of the interveners who obviously will not be required to state a position in relation to the use of the facts. It may be that if there are interveners, some interveners will only want to address particular topics and not all the topics which have been identified as arising out of the special case.

MR FLEMING: Yes, your Honour.

HIS HONOUR: The other matter I wanted to raise with you – it is going to be quite important that the potential interveners, specifically the Attorneys-General for the Commonwealth, the other States and the Territories, should have early notice of this timetable because it does affect them. It may be a matter that the Solicitor-General is happy to, as it were, take responsibility for in terms of notifying the Attorneys-General but somebody is going to have to do that to ensure that they are in a position to decide whether or not they are going to intervene quite promptly because the timetable engages them at a fairly early stage.

MR FLEMING: Thank you, your Honour. We have maintained contact with them and they have been advised of the draft but obviously they would need to have this document - - -

HIS HONOUR: They will need to be advised of any orders made today.

MR FLEMING: Yes, your Honour.

HIS HONOUR: Yes.

MR FLEMING: That will be done.

HIS HONOUR: The other variation I was proposing is in relation to paragraph 13, on the principle that one should never say never, and that is that “The timetable set out in the preceding directions will not, absent special cause, be varied to accommodate late interventions” et cetera. All right, is there anything else you want to submit?

MR FLEMING: Your Honour, in the special case, when one comes to material that our learned friends want to supplement, to get a feeling for it you will see that paragraph 9 there is a reference to “In Canada” and there follows matters that have occurred, then 10 “The United States Department” and 11 “The Australian Crime Commission” - - -

HIS HONOUR: Yes.

MR FLEMING: We would submit that there is a lack of relevance in much of that material. Indeed, you can go back further than that. The HAMC, which they say is an international body, at paragraph 7 has websites, a motto and then in Canada and so on.

HIS HONOUR: Yes.

MR FLEMING: It is our submission that there is scant relevance and the material that our learned friends want to add falls into that category.

HIS HONOUR: In relation to those matters, which fall into the class of paragraphs 2 to 13, I see you say you do not accept – you accept that the defendant enacted – it was really the Parliament, I suppose – the challenge legislation in response to certain legislative and community perceptions of the matters set out in paragraphs 2 to 13 but do not accept the accuracy of those perceptions or the truth of those matters. Is that right?

MR FLEMING: Yes, your Honour.

HIS HONOUR: Yes, all right. Anyway, anything they wanted to add you would make subject to that same disclaimer?

MR FLEMING: Yes, your Honour.

HIS HONOUR: I do not want to get into a full-blown argument about relevance here and that is why I have proposed in the directions that each party should set out at the beginning of the submissions just how it is that they are seeking to rely upon and use the facts which are asserted as part of the special case.

MR FLEMING: Yes, thank you, your Honour. We can deal with it that way.

HIS HONOUR: All right, I will hear from the Solicitor-General now. Thank you. Is there anything further?

MR FLEMING: Your Honour, may I take up your “never say never”. I have never been late for a court in 38 years and I have chosen a very bad time to start and I apologise again profusely.

HIS HONOUR: Your apology is accepted, Mr Fleming. It is all right. We have moved on.

MR FLEMING: Thank you.

HIS HONOUR: Yes, Mr Solicitor.

MR DUNNING: Thank you, Chief Justice. Would it be in order for me to simply deal with those issues, as I have noted them down, that have been raised? In relation to the declaration of the Hells Angels Motorcycle Club under the relevant legislation, the State has no objection to that occurring. If it were we would have thought immediately after paragraph 3 is probably the most likely place in the document for it.

HIS HONOUR: Okay, yes.

MR DUNNING: Secondly, your Honour, in relation to the question of whether hypothetical adds anything to the debate beyond standing, in our respectful submission it does in this way. Mr Kuczborski, whilst a member of the club, has not been charged with anything, he has not said that he intends to commit an offence or that he has in the past and has not been dealt with. He is not in custody. He is not subject to bail.

Now, in those circumstances, whilst one can see how the Criminal Code provisions might touch upon him and the Liquor Act provisions, which might impact on his capacity to visit licensed premises, things like challenges to the Bail Act do seem to have the dual difficulty of both standing generally and even if there were standing of a citizen to challenge such a provision, hypothetical in his case because he is either not admitted to bail or not presently in custody so he is not subject to the Corrective Services Act and it was that distinction that we - - -

HIS HONOUR: What is a consequence of finding that the relief is hypothetical, let us assume standing - let us assume there is a standing debate and he has won it; if he has lost it, cadit quaestio.

MR DUNNING: Yes, of course.

HIS HONOUR: There is a standing debate and he has won it – the question of the hypothetical character of the relief, would that merely be a matter going to the discretionary character of the declaratory relief sought or is it more fundamental than that?

MR DUNNING: It may go to jurisdiction, your Honour. Perhaps if I can illustrate by reference to let us say the Bail Act. If Mr Kuczborski demonstrates that as a person who is not admitted to bail and does not even look like he is exposed to the risk of it, he demonstrates that such a person has standing, there would still be another argument that we would say at least has the potential to go beyond the exercise of the discretion as to whether to determine the question or not as to whether such a person would be entitled to relief in respect of the Bail Act.

HIS HONOUR: Yes, all right.

MR DUNNING: Thank you, your Honour. Your Honour, I perhaps, as I pass off that - - -

HIS HONOUR: Sorry, maybe just before we move off that, you have made some concessions in respect of standing. What are the provisions in respect of which you maintain the position that relief is hypothetical as a separate proposition?

MR DUNNING: Certainly, your Honour. Might I have a moment just to have those - - -

HIS HONOUR: Yes.

MR DUNNING: Thank you. Whilst that is occurring, your Honour, could I raise one other related issue. Nothing in the special case refers to things such as, for example, Mr Kuczborski has not been charged with any offence that could expose him to the VLAD laws, as they are called. Now, ultimately, that is a matter for our learned friends and the absence of that is one of the things that we would point to in relation to - - -

HIS HONOUR: He has to have committed a declared offence in order to attract the application of the VLAD law.

MR DUNNING: Yes.

HIS HONOUR: Yes.

MR DUNNING: In a sense, if we have understood it correctly - - -

HIS HONOUR: I am sorry, he has to have been charged with – he has to have committed it. That is the criterion, is it not?

MR DUNNING: Yes, yes.

HIS HONOUR: Then it engages the sentencing provisions, in effect.

MR DUNNING: Correct, your Honour, yes. Now, it may very well be our learned friends take the point that there is no point in recording something that has not occurred and we have assumed that they have framed the case on that basis, but whilst your Honour was on the topic I thought it appropriate to point that out to your Honour.

HIS HONOUR: Do you want to include in the special case as a fact that the plaintiff has not been charged with nor committed a declared offence? I suppose it would be he has not been charged with at this stage, would it not?

MR DUNNING: I think so because the former is within my side’s knowledge. The latter is not. It might be a bit unreasonable to ask Mr Fleming to commit to the latter as well.

HIS HONOUR: So what are you doing? You are simply flagging it as an issue?

MR DUNNING: I flag it as an issue but on reflection the fact that it has been flagged as an issue perhaps it ought to be something in the case that the plaintiff has not been charged with any offence that would expose him to the operation of the VLAD Act.

HIS HONOUR: Well, that is a declared offence for the purposes of the VLAD Act, is it not?

MR DUNNING: Yes.

HIS HONOUR: Because it is only if you are charged with a declared offence that you then attract those – and you are a participant in an association that you then attract those consequences.

MR DUNNING: Yes, your Honour.

HIS HONOUR: All right.

MR DUNNING: Your Honour, in answer to your Honour’s earlier question, standing is challenged in respect of each of the VLAD Act, the Bail Act and the Corrective Services Act and in respect of the Code, only in respect of section 60B(2).

HIS HONOUR: Sorry, let me just go to that for a moment. This is:

Any person who is a participant in a criminal organisation and attends, or attempts to attend, a prescribed event commits an offence.

MR DUNNING: Yes.

HIS HONOUR: So, yes, the VLAD Act, the Bail Act, the Corrective Services Act and 60B(2) of the Code and you say he does not have standing to raise challenges to - - -

MR DUNNING: That is correct, your Honour.

HIS HONOUR: Yes, all right.

MR DUNNING: Your Honour, then the only remaining two issues I had noted down was in relation to the document referred to in paragraph 12, the Crime Misconduct document, there is a further document – a Europol document that we would also seek to include, again naturally subject to our learned friend’s reservation at the outset at paragraph 12. It is a Europol document that is intelligence on the Hells Angels Motorcycle Gang internationally.

HIS HONOUR: How does that go to the – especially given you want to put it in a redacted form, how does that go to your argument about the validity of this legislation?

MR DUNNING: Your Honour, in respect of the challenge on the Lange basis, if I can compendiously call it that, the second test obviously is that it has to be a law that is reasonably appropriate and adapted to serve a legitimate end in a manner compatible. Now, in our respectful submission, to come to a view on those matters, one needs to have an understanding of the mischief that Parliament was seeking to address.

HIS HONOUR: Well, did Parliament have a redacted report before it?

MR DUNNING: No, we do not put it as high as saying Parliament had a redacted report, but the reports, we would respectfully submit, reflect the matters that were of community and legislative concern. That is why we have chosen reports that are effectively immediately prior to this suite of legislative enactments so that there is something to measure the imposition against. We would assume, though we do not at this stage know, that our learned friend’s formulation of an implied freedom of association is likely to contain similar considerations which is why, in our submission, it would be relevant for the Court in determining the validity of the laws to look at the mischief that Parliament might reasonably have been concerned to deal with.

HIS HONOUR: That would only be material, as it were, available – that would be material which can only be considered in open court.

MR DUNNING: Yes, it would. As I understand, your Honour, the redactions in the CMC document are simply to remove – redact some names. Your Honour, that was my understanding. I might have to have that confirmed I am sorry, but my understanding was the redactions were minor and went to matters of identification but we would need to double check that.

HIS HONOUR: How would the Court – I suppose this comes back to this primary question which I am asking that you and the plaintiff address in the submissions. How would the Court use such a document? It is really going to try to establish a constitutional fact, is it not, namely that the law is reasonable and appropriately adapted, et cetera, to a legitimate end consistent with a representative democracy?

MR DUNNING: Yes.

HIS HONOUR: What is the route by which you get to that judgment through that kind of document, on your submissions?

MR DUNNING: On our submission, your Honour, one gets to that document in this way. If it be accepted for the purpose of our present discussion that it imposes a burden one then has to ask well, what is the reasonableness of that burden and how well adapted it is to achieve its purpose. You need to be informed as to what its purpose is and might legitimately be to answer that inquiry. Put another way, one cannot, in our respectful submission, determine whether it is reasonably appropriate in a vacuum without some content given to the matter that - - -

HIS HONOUR: If one is looking to purpose one goes first to text and context of the statute, does one not?

MR DUNNING: Yes.

HIS HONOUR: And statements of purpose and so forth which might appear in one or other of these statutes. I do not know whether there is any such thing in the VLAD Act anyway and one can also, I suppose, look to – sometimes it has be in extremis – extrinsic materials which will inform the Parliament in order to discern statutory purpose. Having discerned statutory purpose what additional kind of judgment or factual finding is sought on the basis of this material given that the Court would not be in a position to determine the truth or otherwise of the matters of fact asserted in the material and they are not conceded either, as I understand it.

MR DUNNING: No, they are not and nor would the Court be asked, nor would it be appropriate for it to make determinations of fact.

HIS HONOUR: So what would the Court be asked to do?

MR DUNNING: It is a matter that would go to the purpose of the legislation and - - -

HIS HONOUR: We have talked about that.

MR DUNNING: Yes, and how well adapted it is to achieve that purpose, that is, is it reasonably appropriate to what is required so that whilst the performance as to purpose reasonably appropriate, in our respectful submission, requires some knowledge of that which Parliament sought to address.

HIS HONOUR: Is it said that these materials were before Parliament?

MR DUNNING: No, it is not said that, your Honour.

HIS HONOUR: All right. Then it is a bit hard to see how the Court can make judgments of the kind that you are proposing without forming some view about the matters of fact which are asserted in these materials unless you say this is what the Executive thinks and this is informing executive perceptions, but we are talking about a piece of legislation.

MR DUNNING: Yes, I accept that, your Honour. Our response to that, with respect, would be this. When this legislature already comes to enact a piece of legislation it brings to bear many considerations. Some, but only some might be expressly adverted to, but inevitably that legislation reflects the not only community debate but in the case of a legislation like this, as it were, intelligence debate that has preceded it. If one can point to issues that were current and were relevant to it, then it is a matter relevant to determining whether it is reasonably appropriate and adapted without necessarily being able to point to, as it were, the Minister with responsibility for the passage of the legislation having a copy of it in his hand or her hand at the time of the debate.

HIS HONOUR: I am afraid I am not convinced at the moment, Mr Solicitor. It may be that that is an application which could be renewed before the Court, but at the moment you really have not shown me a pathway by which this gets us into an intelligible argument relevant to the questions on the special case. If you want to, as it were, put on a summons with some written submissions in support of it I will be happy to have a directions hearing some time next week for that purpose or deal with it on the papers, if that can be done by agreement with the parties. But at the

moment I am not persuaded that I should make an order amending the special case in that regard. It would be an amendment because it would include an additional reference in paragraph 12 as I understand it.

MR DUNNING: That is so, your Honour, yes. Your Honour, may we reflect on that and if we are to bring such a summons, give notice by say the end of Monday - - -

HIS HONOUR: Yes.

MR DUNNING: Including the summons.

HIS HONOUR: We would need to make it returnable by no later than Thursday of next week. I will be in Perth but I can set up a video link from there.

MR DUNNING: Yes, thank you, your Honour. Your Honour, I think the only other topic I had noted was notice to the other Attorneys-General and it seems appropriate that my side take the responsibility for doing that. No doubt our learned friends might as well but we will take responsibility - - -

HIS HONOUR: That is notice of the orders that are being made today?

MR DUNNING: Correct, your Honour. We will ensure that happens today.

HIS HONOUR: All right. I will hear from Mr Fleming now and in reply and then I will adjourn briefly and just formulate the orders so we can try and settle them today so we do not have to send parties away to draft minutes.

MR DUNNING: Thank you, your Honour.

HIS HONOUR: Yes, Mr Fleming.

MR FLEMING: Your Honour, that last issue has been dealt with, otherwise we have nothing to raise in reply.

HIS HONOUR: All right. I will adjourn briefly and review the draft minutes in the light of the submissions that have just been made and then come back with a proposed variation of those minutes but I will give the parties an additional opportunity to comment on the detail before I make the orders.

The Court will adjourn briefly.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

HIS HONOUR: In making these orders I will work off the draft that has been circulated, so if you use that as the base document. I will give you an opportunity to comment on the detail if there is any difficulty. So, working off the draft, we will insert a new order 1A to read:

The special case be amended by the deletion of paragraphs 18 and 19 and the insertion of a new paragraph 1A to read:

1A. The HAMC is declared to be a “criminal organisation” by the Crime and Misconduct Regulation 2005 (Qld), first as section 70 and Schedule 1 of the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) and then by that section making the said schedule a regulation of the Criminal Code (Qld).

Now, I have not explored the accuracy of that legislative trail, and I assume that if there is a difficulty somebody will raise it. Then 1, following 1A in the draft minutes, the questions in the special case are amended to read as follows:

1.1 Does the plaintiff have standing to seek a declaration that any, and which, of the provisions referred to in the schedule is invalid other than –

So we are adding the words:

other than section 60A of the Criminal Code (Qld), sections 29(1A), 32 and 40(2A) of the Police Powers and Responsiblities Act 2000 (Qld) and sections 173EB and 173EC of the Liquor Act 1992 (Qld).

Then insert a new 1.2:

Is the relief sought by the plaintiff in relation to the provisions of the Vicious Lawless Association Disestablishment Act 2013 (Qld), the Bail Act 1980 (Qld) and the Corrective Services Act 2006 (Qld), referred to in the schedule, and section 60B(2) of the Criminal Code (Qld) hypothetical?

Question 1.2 becomes 1.3, 1.3 becomes 1.4, 1.4 becomes 1.5, 1.5 becomes 1.6 and add a question 1.7:

Who should pay the costs of the special case?

There is then set out the schedule which appears on the draft. Then 2, requiring the plaintiff to file and serve on the defendant the draft index to the special case book by Wednesday, 2 July 2014; 3, the plaintiff to file 12 copies, one copy unbound and unperforated, of the special case book and serve three copies on the defendant and one copy on each intervener by Wednesday, 9 July 2014; 4, that stands subject to the amendment to “Wednesday” 16 July 2014; 5, that stands subject to the amendment to “Wednesday, 6 August 2014”; 6, that stands subject to amendment to “Wednesday, 13 August 2014”; 7, that stands subject to amendment to “Friday, 22 August 2014”; 8 stands as in the draft; 9 stands as in the draft; 10 stands as in the draft; 11 is amended to read “ Subject to the preceding direction, which only applies to the plaintiff and defendant, all parties are to organise their written submissions in chief according to the topics which they wish to address, dealing completely, under each topic heading” et cetera.

Then we have “The topics should be arranged in the following order: 11.1 will be standing; insert a new 11.2 “Whether any of the relief sought by the plaintiff is hypothetical”. Now, I have rearranged the order slightly to make it correspond with the order of the questions so that what is presently nominated as 11.4 will become 11.3, that is, “Whether an implied freedom of association exists and if so, its application to each of the impugned provisions.” So that becomes 11.3. Then 11.4 becomes “The implied freedom of political communication.” That is the present 11.3 which becomes 11.4. Then what is presently 11.2 becomes 11.5, that is “The principles in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 and subsequent relevant decisions.” Then 11.5 becomes 11.6, that is “Inconsistency with the Trade Marks Act 1995 (Cth) and/or the Copyright Act 1968 (Cth). The existing 11.6 which is the hypothetical question to be struck out there because it has been relocated as 11.2.

Then 12, in relation to the submissions of any interveners is as in the draft minute; 13, “The timetable set out in the preceding directions will not, absent special cause, be varied to accommodate late interventions by Commonwealth, State or Territory Attorneys-General”; 14 stands and yes, 15 stands “The costs of the directions hearing shall be costs in the cause.”

Now, Mr Fleming, do you have anything arising out of that?

MR FLEMING: No, nothing arising out of that, your Honour, thank you.

HIS HONOUR: Mr Solicitor?

MR DUNNING: Your Honour, only one matter and that is Mr Kuczborski has not been charged with any offence. Now, it is not just any offence that might bring into operation the VLAD Act. The fact that he has not been charged with any offence may have consequences, the same with the Bail Act or the Corrective Services Act.

HIS HONOUR: Yes, well, there is no assertion of fact that he has been charged with any offence.

MR DUNNING: Yes, very good, your Honour.

HIS HONOUR: So we proceed on the basis that - - -

MR DUNNING: That he has not.

HIS HONOUR: Yes, unless there is a feeling on both sides that that should be inserted as a positive factual matter. I mean, you will be relying on it, presumably in relation to some question of standing in connection with the VLAD Act, for example.

MR DUNNING: Correct.

HIS HONOUR: But you say there is no fact to show that he has been charged.

MR DUNNING: Yes.

HIS HONOUR: Yes, all right. Anything else?

MR DUNNING: Your Honour, the only thing was the CMC document. I was not sure from my exchange with your Honour whether that document would need to be the application by way of summons, or it was just the Europol document that we were - - -

HIS HONOUR: The other document is already in. There is a dispute about it. Obviously the remarks that I have made about the other document might well have some application to the documents already referred to, but I do not want to get into those debates now. If you want to bring in something additional like that and persuade me to let it in, you will need to do so in the way I have indicated.

MR DUNNING: I understand, your Honour. Yes, thank you for that, your Honour. I have nothing further, thank you.

HIS HONOUR: All right, thank you. Now, Mr Fleming, would you then prepare a minute and have it extracted in the appropriate way?

MR FLEMING: Thank you, your Honour.

HIS HONOUR: The Court will now adjourn until - - -

MR DUNNING: Excuse me, your Honour, I apologise for doing this but it has just been brought to my attention that we have also conceded standing for 60B(1) and 60C.

HIS HONOUR: I see.

MR DUNNING: I regret that that was not in my list I gave your Honour.

HIS HONOUR: So the words in 1.1 “other than 60A of the Criminal Code” there will be “other than 60A - - -

MR DUNNING: Section 60B(1).

HIS HONOUR: Yes, and?

MR DUNNING: And 60C, your Honour.

HIS HONOUR: “Other than 60A and 60C”. Is that right?

MR DUNNING: Also 60B(1).

HIS HONOUR: I see. Let me say that again. 1.1 will now read: Does the plaintiff have standing to seek a declaration that any, and which, of the provisions referred to in the schedule is invalid, other than section 60A, section 60B(1) and section 60C(1) of the Criminal Code,” and then the others to which I referred earlier. Do we have that right?

MR DUNNING: Very nearly, your Honour. There is no bracket (1) after 60C, so it is just 60C.

HIS HONOUR: Just 60C, all right. Mr Fleming, are you across that?

MR DUNNING: Thank you, Chief Justice.

MR FLEMING: Yes, your Honour.

HIS HONOUR: All right, thank you. The Court will adjourn until 10.15 on Tuesday, 5 August in Canberra.

AT 11.41 AM THE MATTER WAS ADJOURNED