Bikies on Burley-Griffin

The South Australian Attorney-General, as forecast, has migrated disagreement about the state's anti-bikie law to the High Court.

The Hon Michael Atkinson indicated that the SA Solicitor-General "has today filed documents appealing the decision of the Full Court of the Supreme Court in the matter of Totani & Another vs. the State of South Australia". That decision, discussed recently in this blog, saw the Supreme Court eviscerate over-sold and badly-written legislation - the Serious and Organised Crime (Control) Act 2008 (SA) - that "forms part of the Government's attack on organised crime". Organised crime is represented by 'Outlaw Motorcycle Gangs' (aka OMGs or Bikies), the sort of people you might not want to ask home for tea & sympathy from great aunt Hilda but who - like any other citizen - are not beyond the law and shouldn't be pursued in a way that erodes fundamental principles of the Australian justice system.

In Totani & Anor v The State of South Australia [2009] SASC 301 the Court noted that

the process of depriving a person of their right to and freedom of association on pain of imprisonment for up to five years, although formally performed by a State court which exercises Federal jurisdiction, is in fact performed to a large extent by a member of the Executive Government in a manner which gives the appearance of being done by the Court. But the process is devoid of the fundamental protections which the law affords in the making of such an order, namely the right to have significant and possibly disputed factual issues determined by an independent and impartial judicial officer and the right to be informed of and to answer the case put against the person.

Undaunted by the bad news last month, Mr Atkinson commented that

we are willing to test the constitutional boundaries in order to take the fight to the outlaw motorcycle gangs. So we don't feel the least embarrassed or regretful that we took the fight up to the gangs to the very limit.

His media release today announced that

The challenge is important as the Supreme Court judgment could effect [sic] the Parliament's powers powers in legislating on behalf of the people of South Australia.

Quite so: one rationale for a supreme court is to determine the constitutionality of statute law and act as a restraint on 'elected dictatorship'. Mr Atkinson went on to state that

I have been confident" in this legislation from the outset and I'm equally certain that we will prevail in the highest court in the nation.

The effort in making a special application to the High Court and persuading that court of the virtue of the SA statute might have been better invested in fixing the legislation, rather than in grandstanding that "I remain steadfast in my conviction" - everyone loves a steadfast politician - "that this legislation is necessary and appropriate to stop the violence, the drug dealing and the extortion created by organised crime in South Australia".

The SA Premier chimed in on Twitter this afternoon, announcing that

we are lodging our appeal to High Court today re our anti crime gang laws after SA Supreme Court struck out one section of our legislation

The Attorney-General's media release emphasised that the Supreme Court "held that one section" of the Act was "invalid" and "rendered only one subsection ... invalid". That is correct ... but they are key provisions of the statute. It remains to be seen whether the High Court will hold that the SA Supremes got it quite, quite wrong.