Bikies in NSW have been feeling the heat since March last year when a vicious brawl broke out at Sydney airport between members of the Hells Angels and Comancheros in which Hells Angel Anthony Zervas, 29, was allegedly bludgeoned to death, reported Sally Neighbour in The Australian on 28 June 2010 (“Bikies mount up for their freedom”).
So what has that to do with an opinion column on matters constitutional, you may well be asking? The answer is everything.
…NSW bike control legislation…
Ten days after the Sydney Airport murder, the Crimes (Criminal Organisation Control) Act, 2009 (NSW) was rushed through the NSW Parliament. Based on similar legislation in South Australia, this allows the police commissioner to ask the Supreme Court to declare any organisation whose members are accused by police of criminal activity and regarded as a threat to public safety and order.
The declaration can be based on so-called criminal intelligence, classified police information that cannot be revealed to the affected parties or their lawyers.
The evidence may be heard in secret and the judge does not have to give any reasons for a declaration.
Members of declared organisations can then be subject to control orders that prevent them associating with each other and prohibit them from working in a range of fields, including hotels, security, bookmaking or motor vehicle sales or repairs.
The penalty for a breach is two years in jail, or five years for a second or subsequent offence.
This recalls the attempt to ban the Communist Party which then went to an unsuccessful referendum in 1951.
…South Australian “Finks”…
This month in The State of South Australia v Totani & Anor  the High Court concluded hearing an appeal by South Australian against a decision of the Supreme Court of South Australia striking down its bikie gang control order legislation.
The case involved Sandro Totani, a member of the Finks motorcycle gang. Fivel States intervened to support South Australia.
…the judicial power…
The case is about the judicial power. Under the separation of powers doctrine , which can be traced back to m the Glorious Revolution of 1688, the courts must be independent of the legislative and executive branches.
The question is whether the legislation unacceptably compromised the Magistrates Court’s appearance of independence from the political arms of government, contrary to Chapter III of the Constitution.
This is referred to as the Kable principle after the case in which it was first enunciated.
Michael Pelly, who writes some very perceptive analysyses of matters legal for The Australian thinks the indications during the hearing are that the court will find the legislation invalid.
In his report on 25 June, “Court under Chief Justice French reclaiming judicial power”, he writes that a comment by the Chief Justice on the first day of argument was instructive.
Justice Gummow had cited a comment by former South Australian attorney-general Michael Atkinson that he did not "hold out much hope of this preventing all judges substituting their own decisions on declared organisations for those of the elected government."
"Is that the view of those instructing you? It is not an amusing question either," asked Justice Gummow.
Before the South Australian solicitor-general, Martin Hinton QC, could say "I do not rely on it," Justice French intervened: "It shows a fine contempt for the judiciary."
…risk to public safety…
When Mr. Hinton argued there was a risk to public safety which justified the issue of the control order, Michael Pelly says he got a frosty reception from Justice French.
"Maybe you might take the view that there is a risk, but it is not a risk which justifies the, if you like, imposition of this draconian regime on an organisation and/or possibly on individuals associated with it, and others," said Justice French.
Justice Gummow seemed equally unimpressed with the idea there was procedural fairness and suggested the legislation's use of "must" made it offensive, Mr. Pelly says. "It is not a question of bias, it is a question of appearance of subjugation and subordination of one branch of government to another."
Mr. Pelly says that compared with the reception afforded Hinton, the exchanges with Totani's counsel, Bret Walker SC, were very cordial. At times on the second day, it seemed the bench and bar table were falling over themselves to agree.
The cases referred to in the columns above certainly suggest that the High Court is determined to protect the independence of the courts.