This week in the High Court of Australia

This week the High Court of Australia goes on circuit, hearing two cases in Brisbane.

On Tuesday, 2 September 2014 the Court will hear Kuczborski v The State of Queensland.  In this case the plaintiff challenges the validity of the Vicious Lawless Association Disestablishment Act 2013, and amendments made by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and the Tattoo Parlours Act 2013.  These Acts are yet another attempt by a State government to address law and order issues arising out of the activities of motorcycle gangs.  The challenge will firstly give rise to a question of standing, with the State of Queensland disputing (with a few minor exceptions) that the impugned laws have any operation at all in relation to the plaintiff.  The declarations of invalidity sought, therefore, are said to be hypothetical only. Beyond that, the plaintiff invokes the Kable principle to impugn the laws n the basis that they, in effect, operate to impose more severe criminal consequences upon a person because of their association with a particular group deemed by the Executive to be a criminal organisation.

On Wednesday, 3 September 2014 the Court will hear Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd.  This case arose out of the termination of the employment of a member of the union, following his participation in industrial action at BHP’s Saraji mine.  During a stop-work period the member held up a sign that read “SCABS - no principles - no guts”.  The union commenced proceedings in the Federal Court alleging that BHP had dismissed the member unlawfully, having taken adverse action against the member because he had engaged in the industrial activity.  During the hearing, the mine’s general manager gave evidence that the member’s repeated waving of the sign over a period of three days amounted to harassing behaviour that was contrary to BHP’s conduct policy and the culture being developed at the mine, and it was for that reason that the member had been terminated.  Jessup J upheld the claim by the Union.  On appeal, a majority of the Full Federal Court held that Jessup J’s finding of contravention could not stand, as it was inconsistent with his Honour’s acceptance of the evidence of the mine manager that the industrial activity of the member had played no part in the decision to terminate his employment.  A central issue in the appeal is the circumstances in which an employee can lawfully be terminated for engaging in conduct that amounts to industrial activity, but which concurrently contravenes a conduct policy of an employer.