case will serve as a stark warning to
legislators across the country - don't mess with
the independence and integrity of the courts.
The High Court has
struck out aspects of South Australia's
anti-bikie and anti-gang laws, delivering a
significant blow to Premier Mike Rann's vow to
rid the state of the outlaw groups.
To many in the
community, it might seem an odd decision, with
the highest court in the land siding with people
often linked with organised and violent crime,
including drug dealing and money laundering.
But for those in
the legal profession it was a no-brainer, South
Australia had simply overstepped the mark,
interfering with the fundamental right for
courts to act independently of government and
with an individual's fundamental right to
independently refute and challenge allegations
made against them.
In its anti-gang
legislation the government could require a
magistrate to impose a control order over any
member of a declared gang or even someone who
associated with such a member.
But under the
legislation the magistrate could not review the
secret evidence the government relied on and was
little more than a rubber stamp for the
decision, with no power to refuse the
That didn't go
down well with the High Court.
In its judgment on
Thursday the seven judges ruled 6-1 against the
government, accepting argument from two members
of the Finks motorcycle club.
In his reasons,
Chief Justice Robert French said South
Australia's Serious and Organised Crime Act
required the magistrate to carry out a function
that was inconsistent with the fundamental
assumptions upon which the Australian
constitution was based.
"In that sense it
distorts the institutional integrity which is
guaranteed for all courts," Justice French said.
Counsel for the
Finks, Craig Caldicott, said the High Court's
decision vindicated the long fight against
aspects of the anti-gang laws.
is flawed and clearlythey have to go back to the
drawing board," Mr Caldicott told reporters.
"We have been
saying from the start there are better ways of
doing all of this."
decision will also put on hold other
applications for control orders in South
Australia and will probably delay police moves
to declare more bikie gangs and other groups to
be outlawed organisations.
At first look, it
is unlikely to impact on similar laws in
Queensland and NSW and those proposed for
Nor has it
deterred the federal government from its push
for national organised crime laws.
Attorney-General John Rau says the state
government will fix the problem with its laws
and is actually grateful it now has a
determination from the highest court in the
He said the
court's decision involved only one aspect of the
government's legislation and the government
would press on.
"Our resolution in
terms of supporting the police in their work in
relation to organised crime has not changed," he
"And if I were the
people involved in organised crime in South
Australia today, I'd hold off popping the
"Because we are
going to respond to this and they might find
there are new tools in the kit that the police
have when we do respond."
But what the court
decision has done is reminded lawmakers across
the country that even in an era after the
September 11 attacks and the war against terror,
the principles of an independent judiciary are
not to be dismissed.
Hayne put it simply: "The courts are not to be
used as an arm of the executive."
He said the aspect
of the SA legislation in question was designed
to place restraints on particular individuals,
over and above those imposed on the public at
large, not because of what they had done or
might do, but because the executive had chosen
"That function is
repugnant to the institutional integrity of the
court that is required to perform it," he said.