South Australia, Bikies celebrate High Court win

OFF THE WIRE
Source: abc.net.au

MARK COLVIN: Another High Court decision handed down today has bikies celebrating in South Australia. The Court's conclusions strike at the heart of South Australia's tough anti-bikie laws.

A majority of the High Court has found part of the laws invalid. It also raises questions about similar laws in other states.

Jason Om reports from Adelaide.

BIKIE MEMBER: We'd like to say here, here to the victory and we look forward to fighting many more.

BIKIE MEMBER 2: Hear, hear!

JASON OM: Members of rival clubs have come together for a drink to toast a win against the very laws aimed at stopping them from associating.

The Finks, Hells Angels, Rebels, Longriders, and Gypsy Jokers have all packed a city pub.

Mick Macpherson is from the Finks, the only club still outlawed in South Australia.

MICK MACPHERSON: The Rann Labor government has invested the best part of three years and who knows how much public money on this witch-hunt, even when fellow parliamentarians were against it.

JASON OM: Two years after the South Australian government declared them the "world's toughest anti-bike laws", a key aspect is in tatters.

Six out of seven High Court justices have ruled the section on control orders is constitutionally invalid.

It's prompted a furious debate in State Parliament between the Premier Mike Rann and the Liberal Opposition leader Isobel Redmond.

MIKE RANN: It's here in place and we're coming back into the past year with new legislation to deal wit this issue and we're coming at them with even more measures.

ISOBEL REDMOND: The Premier quoted extensively from the one dissenting judge in his response. Would he care to inform the House what the six other judges, who found against the state, had to say?

SPEAKER OF THE HOUSE: Order. Order!

JASON OM: Under the law, courts are obliged to issue control orders against bikies at the government's instruction. And that, Chief Justice French said, distorts the court's institutional integrity.

In other words, the courts must do what the government says, putting the judiciary's integrity and independence at risk.

He agreed with another justice on the repugnancy of that process.

CRAIG CALDICOTT: Well it is a heck of a message for this state government and also to other state governments.

JASON OM: Lawyer Craig Caldicott represented two members of the Finks in the case, Sandro Totani and Donald Hudson.

CRAIG CALDICOTT: This type of legislation is anathema, we don't like it; I don't like it as a lawyer, lots of people don't like it.

JASON OM: The government has lost its appeal against an earlier ruling in the Supreme Court, which found the control order section invalid. It's given the South Australian Attorney-General John Rau has some rewriting to do.

JOHN RAU: If after we've considered all of the information about this we find that that is the only bit of the Act that's got a problem, we will fix it so that it fits within the goal posts that have been set out by the courts.

If it turns out that other bits of the legislation requires fixing, they will be fixed too.

JASON OM: The High Court ruling raises questions about current and proposed anti-bikie laws in other states.

New South Wales and Queensland looked to South Australia as a template. Western Australia's draft laws are on hold.

The New South Wales Director of Public Prosecutions Nicholas Cowdery says the laws around Australia go too far. He's speaking as the human rights advisor for the Law Council of Australia.

NICHOLAS COWDERY: I think we are in a dangerous situation at the moment and I think in part it has come from our reaction to the threat of terrorism. What the legislatures seem to be doing is taking extraordinary and quite exceptional powers that are being assigned to the fight against terrorism and seeking to employ them in campaigns against what I would call ordinary crime in respect of which we have perfectly serviceable provisions in our criminal laws already.

JASON OM: Nicholas Cowdery hopes the decision prompts changes across Australia.

NICHOLAS COWDERY: Well if the terms of legislation in the other states or in New South Wales, Queensland and the Northern Territory are at risk of being held invalid by the High Court, then of course there has to be a rethink in those particular jurisdictions.

JASON OM: But constitutional law expert Andrew Lynch at the University of New South Wales is more sceptical about the broader effect.

He says the decision is specific to South Australian law.

ANDREW LYNCH: Because of that unique feature in the South Australian legislation it's very hard to see this as automatically casting doubt upon the laws in other states. Those laws, such as New South Wales and Queensland which have given the decision making over to the judicial arm of government have really ensured themselves against the kind of complaint which has undone the South Australian law, which is they've made sure it's not an executive-driven process.

JASON OM: The New South Wales laws are yet to face their own test in the High Court.

Earlier this year, the Hells Angels applied to challenge the validity of the laws.

MARK COLVIN: