High Court throws out South Australian Government's anti-bikie laws

MOTORCYCLE gang members have gathered at a city pub to celebrate a High Court victory they say proves the Rann Government are "the real outlaws".

Members of the Finks, Gypsy Jokers, Descendents and other groups met at the Talbot Hotel, on Gouger St, at 12.30pm today.

Under the banner of the United Motorcycle Council, the groups successfully beat back laws designed to control their movements and prevent them from associating.

Finks sergeant-at-arms Mick McPherson said the meeting was living proof of the State Government's failure.

"Mike Rann wanted to go down in history as the Premier who dismantled the motorcycle gangs - instead, he's the Premier who united, politicised and legalised us," he said.

"He thought he was going to win this court case, and instead he's gotten a back-handed slap.

"Now the government are the real outlaws, because they've written a law that was illegal to start with."

Descendents founding member Tom Mackie said the High Court decision "showed we have a legal right to exist".

"It's really up to the government now as to how far they want to go, trying to trample on our rights as Australian citizens," he said.

"We were right three years ago when we said these laws were bullshit, and that's been proven today."

Mr McPherson said the clubs would continue to fight "whatever the government puts in our way".

"This law was never really about bikies and, hopefully, people in the community realise we've won this for them," he said.

"That's why I'm not wearing my colours today.

"I want to show I'm just like you, I work like you, I pay taxes like you and I have the right to come out and have a drink with my friends, just like you."

In a 6-1 majority decision handed down at 9am, the court dismissed a Government appeal against a Supreme Court ruling that the legislation was unlawful.

High Court Chief Justice Robert French said it was vital to Australian society that courts and judges "decide cases independently" of government.

He said the law - which forces a court to impose a control order on anyone identified by the Attorney-General as a criminal - went against that fundamental principle.


The High Court

High Court Chief Justice Robert French said: "(The law) requires (judges) to make a decision largely preordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in the court and which is based on executive determinations of criminal conduct committed by persons who may not be before the court," he said.

"The (law) thereby requires (a judge) to carry out a function which is inconsistent with 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 the Constitution.

"This appeal should be dismissed with costs."

The Bikies

Outside court, lawyer Craig Caldicott, acting for the men, said 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," he said.

"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."

Mr Caldicott said he believed Attorney-General John Rau would deal with the situation better than his predecessor, Michael Atkinson.

"The State Government and the former Attorney-General had an agenda," he said.

"Hopefully, the new Attorney-General will see the reason and power there is in appropriate laws, not something that's misguided like this was."

He said the High Court's decision was not the end of the matter, calling it "round one of a very long battle".

"There are other challenges to other parts of this legislation, and those will continue," he said.

"We don't yet know how this decision affects the declaration of the Finks as a criminal organisation.

"And the costs, which likely run into hundreds of thousands of dollars, are unlikely to be handed over without a fight - I'm a realist if nothing else."

State Government

Following the ruling, Attorney-General John Rau warned bike gangs against "popping the champagne corks" and said much of tough anti-association laws remain in force.

"It is necessary for me, and those who advise me, to carefully read the six separate judgments so as to fully understand exactly what the implications might be for this Act and possibly other legislation," he said today.

"Rulings such as this obviously present a momentary challenge, but they occur from time to time as part of the normal processes of government.

"My advice to criminal gangs is: don't start popping the champagne corks just yet.

"Our commitment to dealing with this scourge is unshaken.

"Our policy direction won't change. Our support for the police won't change. Our determination to fight organised crime won't change.

"What may change and, what may even need to be extended, are the tools we give to the police and prosecutors to do their job on behalf of the people of South Australia."

Mr Rau said the decision marked the end of the road in relation to this particular legal challenge.

"Most of the Act remains operational," he said.

He would take time to consider how to respond to the decision.

"After due consideration and discussions with the Crown Solicitor, Solicitor-General and Commissioner of Police, I will advise Cabinet and then Parliament as to what steps should be taken to effectively continue the Government's battle against organised crime," he said.

Mr Rau said he "wouldn't have the faintest idea" how much money the State Government would have to pay the bikies to cover their legal costs.

"There is nothing unusual about a party that loses a case having an order for costs made," he said.


Police have vowed to fight on against outlaw motorcycle gangs and organised crime, Assistant Commissioner Tony Harrison said.

"Despite today's decision of the High Court of Australia, South Australia Police will continue its fight against serious organised crime groups," he said

"The Serious and Organised Crime (Control) Act, 2008 was introduced to expand the tools available to police, but it is just one of a number of strategies designed to tackle the ongoing threat of serious organised crime in this state."

"SAPOL will continue to use the unaffected provisions of the Act, together with other strategies, to disrupt the planning and execution of crime.

"Criminal organisations should take no satisfaction from today's decision. SAPOL remains committed to dismantling and disabling criminal organisations that cause serious harm to the community."

State Opposition

Opposition Leader Isobel Redmond said the State Government had wasted taxpayers money on the High Court challenge.

"Their inept and shoddy work in pursuing the High Court challenge has needlessly delayed any implementation of effective, constitutional anti-bikie laws," she said.

"A year spent fighting the Supreme Court ruling against this legislation has left SA no closer to implementing tough, effective anti-bikie laws."

Ms Redmond said too much time had been wasted in court.

"Outlaw motorcycle gangs will be brought under control by police and the community, not by lawyers and legislators."

Former Attorney-General

Former Attorney-General Michael Atkinson, the architect of the rejected laws, said he believed "99 per cent" of the legislation could be salvaged through minor amendments to ensure it was constitutional.

"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.

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."

The Law Society

The SA Law Society says the decision is "no surprise".

Law Society President Ralph Bonig said 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," he said.

"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.

"We have absolutely no problem with being tough on crime however the Society will continue to speak up when we believe that legislation unjustly curtails civil rights and liberties."


In February 2008, the Rann Government drafted the Serious and Organised Crime (Control) Act to combat bikie offending.

The act allowed for outlaw motorcycle gangs to be declared illegal organisations.

It further required courts to place control orders on persons named by the Attorney-General, and ban them from associating with anyone more than six times a year.

Controversially, police could seek those orders without the bikie's knowledge, and without them being present in court.

The courts, meanwhile, had no choice under the legislation but to impose requested control orders.

Deputy Premier Kevin Foley predicted the law would withstand any legal challenge and help eradicate the "filthy" gangs.

Motorcycle clubs including the Finks, Hells Angels and Gypsy Jokers rallied together against the law, staging protests and poker runs.

Interstate governments, meanwhile, expressed interest in the legislation and some drafted their own versions.

In May 2009, the Finks were the first organisation to be declared, and member Donald "Duck" Hudson was slapped with a control order.

He and his friend, Sandro Peter Totani, filed an appeal with the Supreme Court.

One month later, the Adelaide Magistrates Court refused to confirm any control orders until their legality was ratified.

In September 2009, the Full Court of the Supreme Court ruled the law took away the "fundamental proposition" of an accused person's right to a fair trial.

Justice David Bleby said to confirm a control order was to act "in a manner incompatible with the proper discharge of judicial responsibilities".

Mr Atkinson declared the ruling "a minor setback" and initiated a High Court appeal by Solicitor-General Martin Hinton QC..

The High Court handed its ruling down this morning, more than four months after hearing legal argument.

In a document running 183 pages, six of the seven Justices are against the law.

By majority decision, the court dismissed the government's appeal and awarded costs to Hudson and Totani.