OFF THE WIRE
By Tom Nightingale
http://www.abc.net.au/news/2012-06-19/wa-police-have-searched-20-properties/4078704
After laws to tackle motorcycle gangs and crime were struck down as unconstitutional in South Australia and New South Wales, the SA Government has now made its second attempt at a crackdown.
The Government says it is confident the revised laws will hold up to any legal challenge.It is four years since the first laws in Australia sought to tackle motorbike gang crime.
But now police and judges in South Australia have new powers. Police can apply for a gang to be deemed a declared organisation.
If the declaration is made, any gang members can be the subject of control orders restricting movement, weapons or associating with other gang members.
For anyone not a member, it is still an offence to knowingly associate with a gang member more than six times.
SA Attorney-General John Rau is confident the new laws will hold up to any challenge.
"What we've done now is to change it so that the declaration will be made by an eligible judge, no longer the attorney-general," he said.
"The control orders will be made by a judge, not in the magistrate's court, but a Supreme Court judge and the court is not bound to make a control order once a declaration is made.
"So in those three areas the discretion of the courts is absolutely guaranteed, which is a big departure from the previous model."
Inevitable challenge
Let's face it, the people we are talking about here are well-resourced and it is not in their interests just to let this legislation stand and do its workJohn Rau
Mr Rau thinks another legal challenge is inevitable.
"Let's face it, the people we are talking about here are well-resourced and it is not in their interests just to let this legislation stand and do its work," he said.
"So having regard to the advice that I've had, I'm pretty confident that we will withstand those challenges this time, although one can't obviously predict in advance what their arguments might be."
Mr Rau says it will probably be several months before the revised laws are applied by the Government.
"I'm optimistic that within the next six to perhaps eight months we might see some movement in this space," he said.
"My reference to about six months was the amount of time it might take for the evidence to be assembled to make an application to declare an organisation to be a criminal organisation. That may take some months."
Wait and see
I guess it's one of those things where we sort of wait and see how they're enacted or acted upon, when they're acted upon and then that'll give us, you know, give us the reason to engage legal counsel and get them to have a look at itTom Mackie
The United Motorcycle Council of South Australia represents gang members.
Its spokesman is Descendants club member Tom Mackie.
"I guess it's one of those things where we sort of wait and see how they're enacted or acted upon, when they're acted upon and then that'll give us, you know, give us the reason to engage legal counsel and get them to have a look at it," he said.
Gabrielle Appleby is a law lecturer with the University of Adelaide and says the latest South Australian laws are modelled on the New South Wales experience, with a change that a judge provide reasons for decisions, to increase the chances of them being constitutional.
"The South Australian Government has been very smart and they have waited and they have seen what the High Court said about the New South Wales legislation and they have really followed, almost to the letter, the judgments of the High Court in ensuring that this new version of the SOCCA (Serious and Organised Crime (Control) Act) is going to be found constitutional if it is challenged - and I believe it probably will be," she said.
"I guess what I'm more generally disappointed in is there is still provision for the commissioner of police to designate some material as classified and that material will not be released to the respondent, but the court may take that into account both in making a declaration or making a control order.
Well that's a constitutional provision and it's been challenged ... in the court before and it's been found to be constitutional, but it makes huge inroads into procedural fairness and what we understand as justice in our society."