Australia, Bikies face bumpy ride despite favourable ruling

OFF THE WIRE
BY: Andrew Lynch
Source: theaustralian.com.au
LAST week bikie gangs celebrated the High Court's ruling against a core part of South Australia's Serious and Organised Crime (Control) Act.
But the decision of South Australia v Totani, while undoubtedly an important victory, is, however, just one battle in the larger war with state governments over laws passed in recent years to suppress the bikies.
The result in Totani was not hugely surprising in light of the cogent reasons given by the majority of the Full Court of South Australia when they found the Act required the court of a state to fulfil a role that was incompatible with the nature of judicial power under the Commonwealth Constitution.
Although state courts may exercise non-judicial functions, the High Court recognised in the Kable v DPP decision of 1996 that this is not without limit.
State governments cannot confer non-judicial powers upon their courts which render them unsuitable vessels for the vesting of federal judicial power as the national Constitution provides.
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In short, this means they must be, and must appear to be, impartial judicial bodies fully independent from government.
In Totani's case, the Supreme Court ruled and the High Court has now confirmed 6:1 on appeal, that section 14(1) of the Act clearly offended this rule.
The provision said that, upon application by the Police Commissioner, the Magistrates Court must make a control order against a person if satisfied that he or she is a member of a declared organisation.
Chief Justice Robert French found that the control order involved a serious imposition upon the personal liberty of the individual to associate or communicate with other members.
However, to understand why the High Court found section 14(1) invalid, we need to examine the precursor to its operation. That is a declaration by the state attorney-general under section 10 of the Act against an organisation.
The attorney-general considers secret police evidence for this purpose, which is not to be disclosed to affected individuals. He or she must be satisfied that members of the organisation associate for a criminal purpose and that the entity represents a risk to public safety and order. The rules of evidence do not apply and no statement of reasons is required.
Incredibly, the validity or legality of such a declaration is expressly protected from challenge or review.
The crucial issue of criminality is the preserve of the attorney-general alone. Under section 14(1), the court's involvement is limited to an obligation to issue a control order against an individual -- regardless of any mitigating factors such as the lack of evidence suggesting any personal involvement in criminal activity -- once the commissioner makes an application and that individual is shown to be a member of the organisation.
Chief Justice Robert French said the scheme represented "a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process".
Justices Susan Crennan and Virginia Bell said that the conditions upon which the court must make a control order, namely on the back of the attorney-general's determination and without any independent examination of the claims of criminality, effectively rendered "the court an instrument of the Executive, which undermines its independence".
This loss of the necessary independence of state courts as required by the Constitution was fatal to the validity of the South Australian provision.
It seems inconceivable that the Rann government will let the High Court's decision be the last word on anti-bikie laws.
It presumably will tailor its legislation with a keener eye on constitutional compliance. Indeed, it is puzzling why this was not done in response to the Supreme Court's ruling. Instead of the cost-free option of legislative amendment, the state pursued a doomed appeal to the High Court at taxpayers' expense.
What is the significance of the Totani decision for comparable laws in the other states?
Although all except Tasmania intervened in the High Court hearings in support of South Australia's case, they need not be too worried about the outcome. Totani is not a decision against the making of preventive orders by state courts generally. The High Court has upheld other such orders, notably for sex offenders.
In 2007's Thomas v Mowbray, it even said control orders could be issued by the federal courts against individuals not suspected of criminal activity.
Basically, Totani is about process more than it is about any principle of preventive justice.
The states will be able to have bikie gangs -- or any other organisation that meets the relevant criteria -- declared and control orders issued over its members or associates, just as long as they do not use the courts as a mere agent or rubber stamp of the executive's decisions on these matters.
The easiest way to achieve this is to ensure the courts retain real discretion on the exercise of their power. Additionally, the determination of crucial issues as to criminality should be determined by someone other than an elected minister.
This could be the courts themselves (as in Queensland's law) or judges acting in their personal capacity but still at arm's length from government (as in NSW and the Northern Territory).
Such approaches are far less constitutionally provocative than the clumsy South Australian legislation.
NSW Attorney-General John Hatzistergos has expressed confidence that his laws are not threatened by the Totani ruling. Regardless of other constitutional issues to which the NSW Act may give rise, he is right.
As Chief Justice French noted in his reasons last week, the South Australian scheme was distinctive.
The bikies have a long -- and far bumpier -- road ahead of them in their continuing efforts to overturn other state laws targeting their clubs.
Andrew Lynch is director of Gilbert + Tobin Centre of Public Law, UNSW