High Court throws out South
Australian Government's anti-bikie
Sean Fewster, Daniel Wills, Adam
Todd, Amy Noonan
MOTORCYCLE gang members have
gathered at a city pub to celebrate
a High Court victory they say proves
the Rann Government are "the real
the Finks, Gypsy Jokers, Descendents and
other groups met at the Talbot Hotel, on
Gouger St, at 12.30pm today.
banner of the United Motorcycle Council,
the groups successfully beat back laws
designed to control their movements and
prevent them from associating.
sergeant-at-arms Mick McPherson said the
meeting was living proof of the State
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,"
thought he was going to win this court
case, and instead he's gotten a
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".
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.
right three years ago when we said these
laws were bullshit, and that's been
McPherson said the clubs would continue
to fight "whatever the government puts
in our way".
was never really about bikies and,
hopefully, people in the community
realise we've won this for them," he
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.
Chief Justice Robert French said it was
vital to Australian society that courts
and judges "decide cases independently"
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
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.
thereby requires (a judge) to carry out
a function which is inconsistent with
the rule of law and the independence of
courts and judges.
sense it distorts that institutional
integrity which is guaranteed for all
state courts by the Constitution.
appeal should be dismissed with costs."
court, lawyer Craig Caldicott, acting
for the men, said the judgment
vindicated his client's stance.
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.
one we have been saying that this
legislation is flawed and now, clearly,
the government needs to go back to the
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."
Caldicott said he believed
Attorney-General John Rau would deal
with the situation better than his
predecessor, Michael Atkinson.
Government and the former
Attorney-General had an agenda," he
"Hopefully, the new Attorney-General
will see the reason and power there is
in appropriate laws, not something
that's misguided like this was."
the High Court's decision was not the
end of the matter, calling it "round one
of a very long battle".
other challenges to other parts of this
legislation, and those will continue,"
yet know how this decision affects the
declaration of the Finks as a criminal
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."
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.
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.
such as this obviously present a
momentary challenge, but they occur from
time to time as part of the normal
processes of government.
to criminal gangs is: don't start
popping the champagne corks just yet.
commitment to dealing with this scourge
policy direction won't change. Our
support for the police won't change. Our
determination to fight organised crime
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
said the decision marked the end of the
road in relation to this particular
the Act remains operational," he said.
take time to consider how to respond to
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.
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.
nothing unusual about a party that loses
a case having an order for costs made,"
have vowed to fight on against outlaw
motorcycle gangs and organised crime,
Assistant Commissioner Tony Harrison
today's decision of the High Court of
Australia, South Australia Police will
continue its fight against serious
organised crime groups," he said
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."
will continue to use the unaffected
provisions of the Act, together with
other strategies, to disrupt the
planning and execution of crime.
organisations should take no
satisfaction from today's decision.
SAPOL remains committed to dismantling
and disabling criminal organisations
that cause serious harm to the
Leader Isobel Redmond said the State
Government had wasted taxpayers money on
the High Court challenge.
inept and shoddy work in pursuing the
High Court challenge has needlessly
delayed any implementation of effective,
constitutional anti-bikie laws," she
spent fighting the Supreme Court ruling
against this legislation has left SA no
closer to implementing tough, effective
said too much time had been wasted in
motorcycle gangs will be brought under
control by police and the community, not
by lawyers and legislators."
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
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.
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.
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
Society President Ralph Bonig said he
did not condone criminal gangs but
believed the anti-bikie laws "went too
away an individual's fundamental right
to independently refute and challenge
allegations made against them and
impaired the independence of the
courts," he said.
consequences of control orders amounted
to a serious restraint on their liberty.
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.
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."
February 2008, the Rann Government
drafted the Serious and Organised Crime
(Control) Act to combat bikie offending.
allowed for outlaw motorcycle gangs to
be declared illegal organisations.
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.
courts, meanwhile, had no choice under
the legislation but to impose requested
Premier Kevin Foley predicted the law
would withstand any legal challenge and
help eradicate the "filthy" gangs.
clubs including the Finks, Hells Angels
and Gypsy Jokers rallied together
against the law, staging protests and
governments, meanwhile, expressed
interest in the legislation and some
drafted their own versions.
2009, the Finks were the first
organisation to be declared, and member
Donald "Duck" Hudson was slapped with a
He and his
friend, Sandro Peter Totani, filed an
appeal with the Supreme Court.
later, the Adelaide Magistrates Court
refused to confirm any control orders
until their legality was ratified.
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.
David Bleby said to confirm a control
order was to act "in a manner
incompatible with the proper discharge
of judicial responsibilities".
declared the ruling "a minor setback"
and initiated a High Court appeal by
Solicitor-General Martin Hinton QC..
Court handed its ruling down this
morning, more than four months after
hearing legal argument.
document running 183 pages, six of the
seven Justices are against the law.
majority decision, the court dismissed
the government's appeal and awarded
costs to Hudson and Totani.