Bikie Law

I've recently noted so-called 'bikie control order laws' in Australia (eg here and here) and New Zealand (here), which pose questions about identification, jurisprudence, the politics of law-making and the practicalities of law enforcement in dealing with people who really don't want to obey the law (indeed may revel in being labelled as offenders).

It was thus interesting to see that the Supreme Court of Australia, in Totani & Anor v The State of South Australia [2009] SASC 301, has ruled that key elements of the Serious and Organised Crime (Control) Act 2008 (SA) [here] are invalid.

The decision involves a challenge by Hudson and Totani of the Finks Motorcycle Club against the Act. That statute has been promoted as "targeting organised crime" - aka Outlaw Motorcycle Gangs (OMG) - and allows for control orders against recognised members of motorcycle clubs. The effect of those orders to prohibit (criminalise) people who are the subject of those orders from associating with each another in most circumstances.

The Finks were the first targeted under the SA statute. The lawyers for Totani and Hudson argued that the orders were unconstitutional, on the basis that magistrates were given no choice but to impose them. The Court was asked to rule on

1. Is s 10(1) of Act a valid law of the State of South Australia?
2. Is the declaration by the Attorney-General [affecting the organisation] void and of no effect?
3. Is s 14(1) of the Acta valid law of the State of South Australia?
4. Is the control order in respect of [Mr Hudson] made on 25 May 2009 void and of no effect?

In a majority decision the full Supreme Court ruled that ss 10(1) and 14(1), the parts of the legislation governing control orders, are invalid. The Government has been ordered to pay costs for the bikies' lawyers.

Bleby J stated that

... it can be seen 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.

The statutory requirement embodied in s 14(1) that the Court must act without question on a declaration which represents the finding of the Attorney-General on matters critical to the making of the control order, and without the right to a fair hearing, means that the judicial function actually performed by the Magistrates Court is significantly impaired in a manner which is incompatible with its institutional integrity. The difficulty is not removed by providing a right of appeal to this Court. The Attorney-General’s certificate is equally binding on this Court which has its own institutional integrity impaired in the same way.

Attorney-General Michael Atkinson indicated that the SA Government is considering a High Court challenge or amending the legislation.

As a Government 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.

Meanwhile Adelaide Magistrates Court has dismissed seven control orders made against Finks members and three applications for orders under the legislation.

Craig Caldicott, a lawyer representing the Finks, commented that

We've said from day one that section 14 of the is invalid, it's draconian and it's just basically un-Australian. It means that once more the civil liberties have triumphed to a certain extent.

The ABC quotes "Motorcycle club member Shaun McGrath" as applauding the ruling on the basis that the legislation eroded civil rights.

We're pretty excited that this ruling has been coming down, this law was ethically and morally wrong, just plain bad. Civil rights does have a leg to stand on in South Australia.

Fancy that, a bikie who remembered his Kant, Raz or Finnis.

I'm reminded of Finnis after reading his 20 page 'H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher' (Oxford Legal Studies Research Paper 30/2009 here), which

offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963)

If you are fan of Finnis it will presumably hit the spot. My eyebrows, grizzled tho they are, were raised on reading Denningisms such as

European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia's or the Levant's.

The jeremiads on private wickedness - upmarket Pat Buchanan or Fred Nile that makes me want to go off and play tonsil hockey with the auto-icon of Jeremy Bentham - includes the usual denunciation of consensual same sex activity

To take up the issue on which Hart chose to focus—those who actually judge homosexual acts, like other non-marital sex acts, immoral, while they might grant that the private homosexual sex acts of two already morally corrupt adults in private do no harm, can argue with force that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age, is gravely and unjustly harmful to the child and to society, since it involves the child, and eventually perhaps the society, in a gross misunderstanding of the contribution sex acts have to make—and of the act-descriptive conditions without which such accts cannot make it—to marriage as the indubitably most favourable and fairest milieu for the procreation and upbringing of children and for the lifelong fulfillment of the married persons themselves.