The case, noted earlier this year, concerned the South Australian Government's appeal against the SA Supreme Court's decision, in Totani & Anor v The State of South Australia [2009] SASC 301, that the state's anti-bikie law is defective.
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.
Craig Caldicott, lawyer for the bikies, is reported as commenting that the judgment vindicated his client's stance.
Six of the seven top judges in Australia have found this legislation invalid. That's a heck of a message to this State Government, and every other state government.Somewhat disturbingly, former SA Attorney-General Michael Atkinson, sponsor of the problematical legislation, seems to have missed the point. He is reported as claiming that "99 per cent" of the statute could be salvaged through minor amendments to ensure it was constitutional.
From day one we have been saying that this legislation is flawed and now, clearly, the government needs to go back to the drawing board.
There are better ways of achieving this - if the government took all the money it's spent on crime gang task forces and High Court challenges and spent it on effective policing, the public would be better served and better protected.
The Adelaide Advertiser, the paper of record in South Australia (and which memorably jousted with Mr Atkinson) reports him as saying -
"I would have thought it's very easy to amend the legislation to give magistrates more discretion dealing control orders," he told 891 ABC Adelaide this morning.The State presumably is able to afford the "best legal misrepresentation". Expectations about flicking responsibility to the magistrates suggests that it might be time to reread the constitutional law primers ... or just talk to the SA Law Society.
He said he always expected it would be challenged in the High Court.
"The bikies are able to obtain the best legal representation, we always knew this would be taken to the High Court, I'm sorry we lost, but I'm sure that the Government will adjust it and come back.
"We wanted the legislation to be efficient as possible and we believed that if the Police Commissioner and the Attorney-General decided that a gang was formed and existed for the purpose substantially of crime then that ought to be a political decision."
Law Society President Ralph Bonig is reported as commenting that he did not condone criminal gangs but believed the anti-bikie laws "went too far" -
It took away an individual's fundamental right to independently refute and challenge allegations made against them and impaired the independence of the courts.French CJ, in the majority decision by the HCA, stated that -
The consequences of control orders amounted to a serious restraint on their liberty.
When a court was then asked to impose a control order on an individual based on that declaration the court was not permitted to test the material. This is contrary to the fundamental institutional integrity of the courts and an individual's right to a fair and independent hearing at which they can challenge allegations made against them.
ection 14(1) requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that Court and which is based on executive determinations of criminal conduct committed by persons who may not be before the Court. The SOCC Act thereby requires the Magistrates Court to carry out a function which is inconsistent with fundamental assumptions, upon which Ch III of the Constitution is based, about the rule of law and the independence of courts and judges. In that sense it distorts that institutional integrity which is guaranteed for all State courts by Ch III of the Constitution so that they may take their place in the integrated national judicial system of which they are part. This appeal, by the State of South Australia against the decision of the Full Court, should be dismissed with costs.He went on to comment that -
Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as "criminal intelligence", would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. I agree with the conclusion of Gummow J, Crennan and Bell JJ and Kiefel J that s 14(1) authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court's institutional integrity. I agree also with the conclusion reached by Hayne J about the operation of s 14(1) in permitting the executive to enlist the Magistrates Court for the purpose of applying special restraints to particular individuals identified by the executive as meriting application for a control order[196] and the repugnancy of that function to the institutional integrity of the Court.
In the exercise of the function conferred on it by s 14(1), the Magistrates Court loses one of its essential characteristics as a court, namely, the appearance of independence and impartiality. In my opinion, s 14(1) is invalid.
