Last year the SASC held that that key elements of the Serious and Organised Crime (Control) Act 2008 (SA) were invalid, a matter discussed here. At that time the state Attorney-General, Mr Atkinson, the same Minister who recently suffered an embarrassing backdown over legislation that also appears to be defective, vowed that the fight against Outlaw Motorcycle Gangs [OMGs] would continue ... presumably at least until the election.
This week was marked by the explosion of what appears to have been a car bomb - or merely a car in which incompetents were conveying a bomb - an explosion quickly announced as attributable to OMG infighting. Mr Atkinson reportedly commented that the fact that OMGs and their lawyers "squeal like stuck pigs about our legislation" was proof the laws were effective, foreshadowing bans on all OMGs.
The Police Minister, apparently competing with the A-G for colourful remarks (Atkinson had damned the state's leading paper as a sewer) reportedly claimed that the anti-OMG legislation was justified and commented that -
Churchgoers don't generally cruise the suburbs at five o'clock in the morning with explosives in their car. This is precisely why we have ensured that our police have the resources and the laws they need to stamp out the criminal activities of these gangs. Rather than running knitting circles or claiming to belong to a men's support group filled with ordinary fathers and grandfathers, the reality is these gangs consist of dangerous offenders heavily involved in the manufacture and sale of drugs, murder, extortion and intimidation.Indeed, members of OMGs are not nice people ... but as a society we need to be wary about legislation that denies natural justice or that is so shoddy that it rightly occasions serious criticism by a state's highest court. (Justice David Bleby ruled that part of the legislation breached a "fundamental proposition" of law.)
The Minister lamented "constant criticism" by civil libertarians (apparently forgoing the opportunity to characterise senior members of the SA Bar as herbal tea sipping tree hugging hippies) and explained that his Government "will not now, nor will ever, apologise for giving the police the powers and resources to combat organised crime gangs and will do whatever is necessary to protect the public". People may of course disagree about the effectiveness and appropriateness of particular measures. Given the Police Minister's promise that "It's going to take time to win the war, but that is what we will win" we can expect to see more fireworks, inside and outside courts.
Hopefully some of the actors will recall Lord Bingham's 2006 comment on the rule of law [PDF].
There has been much debate whether the rule of law can exist without democracy. Some have argued that it can. But it seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live
