Australia, Bikies case a warning to lawmakers

OFF THE WIRE
BY: Tim Dornin
Source: thereporter.com.au
THE case will serve as a stark warning to legislators across the country - don't mess with the independence and integrity of the courts.
The High Court has struck out aspects of South Australia's anti-bikie and anti-gang laws, delivering a significant blow to Premier Mike Rann's vow to rid the state of the outlaw groups.
To many in the community, it might seem an odd decision, with the highest court in the land siding with people often linked with organised and violent crime, including drug dealing and money laundering.
But for those in the legal profession it was a no-brainer, South Australia had simply overstepped the mark, interfering with the fundamental right for courts to act independently of government and with an individual's fundamental right to independently refute and challenge allegations made against them.
In its anti-gang legislation the government could require a magistrate to impose a control order over any member of a declared gang or even someone who associated with such a member.
But under the legislation the magistrate could not review the secret evidence the government relied on and was little more than a rubber stamp for the decision, with no power to refuse the application.
That didn't go down well with the High Court.
In its judgment on Thursday the seven judges ruled 6-1 against the government, accepting argument from two members of the Finks motorcycle club.
In his reasons, Chief Justice Robert French said South Australia's Serious and Organised Crime Act required the magistrate to carry out a function that was inconsistent with the fundamental assumptions upon which the Australian constitution was based.
"In that sense it distorts the institutional integrity which is guaranteed for all courts," Justice French said.
Counsel for the Finks, Craig Caldicott, said the High Court's decision vindicated the long fight against aspects of the anti-gang laws.
"This legislation is flawed and clearlythey have to go back to the drawing board," Mr Caldicott told reporters.
"We have been saying from the start there are better ways of doing all of this."
The court's decision will also put on hold other applications for control orders in South Australia and will probably delay police moves to declare more bikie gangs and other groups to be outlawed organisations.
At first look, it is unlikely to impact on similar laws in Queensland and NSW and those proposed for Western Australia.
Nor has it deterred the federal government from its push for national organised crime laws.
South Australian Attorney-General John Rau says the state government will fix the problem with its laws and is actually grateful it now has a determination from the highest court in the land.
He said the court's decision involved only one aspect of the government's legislation and the government would press on.
"Our resolution in terms of supporting the police in their work in relation to organised crime has not changed," he said.
"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."
But what the court decision has done is reminded lawmakers across the country that even in an era after the September 11 attacks and the war against terror, the principles of an independent judiciary are not to be dismissed.
Justice Kenneth Hayne put it simply: "The courts are not to be used as an arm of the executive."
He said the aspect of the SA legislation in question was designed to place restraints on particular individuals, over and above those imposed on the public at large, not because of what they had done or might do, but because the executive had chosen them.
"That function is repugnant to the institutional integrity of the court that is required to perform it," he said.