- Bikie laws declared unconstitutional
- 11/11/2010 Make a Comment
- Contributed by: MrNatural ( 12 articles in 2010 )
The High Court has declared as unconstitutional South Australia's controversial bikie laws banning members from associating.
The judgment throws into doubt a key aspect of South Australia's Serious and Organised Crime Control Act, whereby restrictions could be placed on gang members without a court having the power to review the evidence.
The High Court has sided with the Finks motorcycle club, which challenged South Australia's laws.
The decision upholds a ruling by the South Australian Supreme Court in 2009 that found aspects of the state's anti-bikie laws to be unconstitutional.
The South Australian government has been ordered to pay costs to Finks motorcycle gang members Sandro Totani and Donald Hudson.
A majority of the High Court bench considered that South Australia's Organised Crime Act was incompatible with the political independence of magistrates courts.
Chief Justice Robert French said courts and judges needed to decide cases independently of the executive government.
"That is part of Australia's common law heritage, which is antecedent to the constitution," he wrote in his judgment.
The court had misgivings about obliging magistrates to impose serious restrictions on a person's liberty "whether or not that person had committed or was ever likely to commit a criminal offence".
Under the South Australian law, the attorney-general can ask the police commissioner to seek a control order for members of a group suspected of "supporting or encouraging serious criminal activity".
In making a determination, the attorney-general only needed to be satisfied that a crime had been committed.
In May and June 2009, the South Australian police commissioner Mal Hyde applied to the magistrates court under the Control Act to have orders placed on Mr Hudson and Mr Totani, alleging they were members of a motorcycle club.
Police says they will pursue bikies
Assistant Commissioner Tony Harrison said South Australian police would continue the fight against serious and organised crime groups.
"The Serious and Organised Crime Act was introduced to expand the tools available to police, but it is just one of a number of strategies designed to tackle the ongoing threat of serious organised crime in this state," Mr Harrison said.
"Police will continue to use the unaffected provisions of the act, together with other strategies, to disrupt the planning and execution of crime.
"Criminal organisations should take no satisfaction from today's decision.
"SAPOL remains committed to dismantling and disabling criminal organisations that cause serious harm to the community."
Court ruling an annoyance, says Attorney-General
Attorney-General John Rau said the court's decision involved only one aspect of the government's Serious and Organised Crime Act.
"I would obviously be crazy not to say that this is an annoyance in terms of the ongoing program," he said.
"But it's nothing more than that and our resolution in relation to dealing with organised crime has not changed.
"Our resolution in terms of supporting the police in their work in relation to organised crime has not changed.
"And if I were the people involved in organised crime in South Australia today I'd hold off popping the champagne corks because we are going to respond to this, and they might find there are new tools in the kit that the police have when we do respond."
The judgment throws into doubt a key aspect of South Australia's Serious and Organised Crime Control Act, whereby restrictions could be placed on gang members without a court having the power to review the evidence.
The High Court has sided with the Finks motorcycle club, which challenged South Australia's laws.
The decision upholds a ruling by the South Australian Supreme Court in 2009 that found aspects of the state's anti-bikie laws to be unconstitutional.
The South Australian government has been ordered to pay costs to Finks motorcycle gang members Sandro Totani and Donald Hudson.
A majority of the High Court bench considered that South Australia's Organised Crime Act was incompatible with the political independence of magistrates courts.
Chief Justice Robert French said courts and judges needed to decide cases independently of the executive government.
"That is part of Australia's common law heritage, which is antecedent to the constitution," he wrote in his judgment.
The court had misgivings about obliging magistrates to impose serious restrictions on a person's liberty "whether or not that person had committed or was ever likely to commit a criminal offence".
Under the South Australian law, the attorney-general can ask the police commissioner to seek a control order for members of a group suspected of "supporting or encouraging serious criminal activity".
In making a determination, the attorney-general only needed to be satisfied that a crime had been committed.
In May and June 2009, the South Australian police commissioner Mal Hyde applied to the magistrates court under the Control Act to have orders placed on Mr Hudson and Mr Totani, alleging they were members of a motorcycle club.
Police says they will pursue bikies
Assistant Commissioner Tony Harrison said South Australian police would continue the fight against serious and organised crime groups.
"The Serious and Organised Crime Act was introduced to expand the tools available to police, but it is just one of a number of strategies designed to tackle the ongoing threat of serious organised crime in this state," Mr Harrison said.
"Police will continue to use the unaffected provisions of the act, together with other strategies, to disrupt the planning and execution of crime.
"Criminal organisations should take no satisfaction from today's decision.
"SAPOL remains committed to dismantling and disabling criminal organisations that cause serious harm to the community."
Court ruling an annoyance, says Attorney-General
Attorney-General John Rau said the court's decision involved only one aspect of the government's Serious and Organised Crime Act.
"I would obviously be crazy not to say that this is an annoyance in terms of the ongoing program," he said.
"But it's nothing more than that and our resolution in relation to dealing with organised crime has not changed.
"Our resolution in terms of supporting the police in their work in relation to organised crime has not changed.
"And if I were the people involved in organised crime in South Australia today I'd hold off popping the champagne corks because we are going to respond to this, and they might find there are new tools in the kit that the police have when we do respond."
Source: https://www.smh.com.au/national/bikie-laws-declared-unconstitutional-20101111-17o8w.html
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