Alexander Pope's friend John Arbuthnot, criticising scabrous publisher Edmund Curll (1675-1747) - infamous for penny dreadful biographies and unauthorised publication of correspondence, including stolen correspondence - quipped that Curll has added new terrors to the grave.
Some people may feel like that regarding Australian defamation law, which provides no posthumous protection for saints and crooks alike. The powerful may chill criticism while they are alive but denunciations of shameful practice or outright criminality lie asleep on databases and in secure storage, ready for publication - as obituaries and exposes - once word of death has been confirmed.
Today's Age starts a belated critique of colourful entrepreneur Richard Pratt, variously accused of bribery, tax offences, Trade Practices Act contravention, standover tactics and association with criminal groups (ie the outlaw motorcycle gangs that are the subject of controversial SA and NSW statutes highlighted elsewhere in this blog). Nothing yet about arson or other nastiness but presumably that will come.
Pratt is alleged to have employed members of the Hells Angels, an entity that its advocates picture as a philanthropic body (santas on wheels but with tats) and its opponents as bloodcurdling practitioners of organised crime straight from Satan. Wainohu of the Hells last week filed a writ of summons in the High Court, preempting a hearing by NSW Supreme Court judge Peter McClellan.
The Hells are appealing to the High Court to have the Crimes (Criminal Organisations Control) Act 2009 (NSW) - ie the NSW anti-bikie law - declared invalid. Wainohu's writ claims the NSW statute is unconstitutional, arguing that it "undermines the institutional integrity of the Supreme Court of NSW, is outside the legislative powers of the defendant, and is invalid".
The Supreme Court was to consider a NSW Government application, filed earlier this month, that would allow NSW police to gain control orders over Hells Angels members. Those orders would restrict the movements and activities of the members, leaving them facing jail terms of up to five years without being convicted of any other offence. The restriction would affect contact with other parties and potentially penalise those parties ... if successful it could have been used against figures such as Pratt.
McClellan has stood the matter over for two months, indicating that he did not want to have to go through the police's weighty brief unless absolutely necessary: "I could be wasting my time if the High Court says this application is invalid. The proposition is that I stand the matter over for some eight weeks to enable me to understand what the High Court has done or intends to do."
The application for an order remains contentious, with criticism that the legislation enables a denial of justice through the suppression of evidence (ie evidence can be kept secret and not sighted by defendants) and comment - for example by the author of this blog - that the legislation is unnecessary, given that existing statutes and protocols cover illegal activity by OMGs. NSW Director of Public Prosecutions Nicholas Cowdery for example condemned the statute as unnecessary and as offending against the rule of law.
