OFF THE WIRE
Anna Patty
Geesche Jacobsen
smh.com.au
"Outlaw motorcycle gangs are cashed up because of their illegal activities" ... The Premier, Barry O'Farrell. Photo: Vicky Hughson
DOUBTS have been raised about whether the state's new anti-bikie gang legislation would survive a High Court challenge.
The Premier, Barry O'Farrell, admitted yesterday the only way to ensure state bikie laws would not be challenged was through national action.
''Outlaw motorcycle gangs are cashed up because of their illegal activities,'' he said. ''They will mount further challenges to any state that legislates.
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''The best way to guarantee that legislation can't be challenged by the High Court is to have national legislation.''As signalled by the Herald last month, the NSW Attorney-General, Greg Smith, said yesterday he would introduce legislation to repair a section of the anti-bikie gang law introduced by the Rees government in 2009.
He said the laws would enable police to apply to an eligible Supreme Court judge to have a gang declared a criminal organisation and to have control orders imposed which prohibit members from associating with each other.
"Importantly, judges will now be required to give reasons for declaring a criminal organisation, which will address a key issue in the High Court decision which struck down NSW bikie laws last year," Mr Smith said.
The president of the NSW Law Society, Justin Dowd, said unless the amended legislation overcame all the hurdles referred to in last year's judgment ''there must remain some doubt about the validity of that legislation''.
The barrister who led the challenge against the NSW laws said the changes did not seem to address all issues. Mark Robinson, SC, said the High Court had quashed the legislation after identifying one defect, but had not needed to rule on several other issues. He said the main issue appeared to be if the process involving Supreme Court judges ''does not look like a Supreme Court, or takes away from its authority or … its integrity''.
He said the legislation stopped people who were not involved in criminal activities from talking to each other. ''I can't see it's constitutionally authorised.''
A law lecturer at the University of NSW, Nicola McGarrity, said it was likely the legislation ''would pass constitutional muster'' after amendments to require judges to give reasons for declaring a criminal organisation were made.
Read more: http://www.smh.com.au/nsw/national-bikie-laws-the-answer--premier-20120214-1t49q.html#ixzz1mVaIb4Xu
