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September 15, 2010 - 6:09PM
NSW legislation targeting criminal gangs such as bikies could be tested by the High Court before the end of the year, pending the outcome of a South Australian case.
Using new laws introduced by NSW Parliament in 2009, the state's police commissioner has applied to the NSW Supreme Court to declare the Hells Angels Motorcycle Club a criminal organisation.
The declaration would prevent the 46 members of the NSW chapter of the club from contacting each other by any means.
A breach would result in two years prison, a second breach extending the term to five years.
In response to the move, Hells Angel member Derek Wainohu filed a writ in the High Court outlining 15 claims, including that the declaration is "invalid" and is "outside the legislative powers" of the state.
When the matter first reached the Supreme Court in July, Justice Peter McClellan said he may be "wasting" his time pending the High Court outcome and adjourned the matter until September 27.
In the High Court in Sydney on Wednesday, Wainohu's lawyer Mark Robinson sought that a date be set for a special one day hearing.
"It would be preferable that at least a hearing date be allocated by this court so we can say to Justice McClellan that we now have a date in the High Court," Mr Robinson said.
"If there is a date his honour Justice McClellan might simply stay the proceedings.
"That would certainly be the application we would put before him in a couple of days when we are back before him."
However, High Court Justice Dyson Heydon declined to set a date for the hearing, instead deciding to wait for judgement to be handed down in the High Court matter of Totani and the state of South Australia.
Sandro Totani is one of eight members of the Finks motorcycle club in South Australia to have a control order imposed, effectively banning them from seeing each other.
Totani has challenged the order in the High Court, arguing the orders are unconstitutional.
The full bench of the High Court is currently reserved for judgment in the Totani matter.
"Until Totani is handed down it seems difficult for us to really say what's going to happen in relation to these proceedings," Solicitor General for NSW Michael Sexton, SC, said in Sydney's High Court on Wednesday.
The matter has been adjourned until October 7 for further directions.
"I'm not in a position to fix the matter for hearing but I think I can say that ... if the State of South Australia versus Totani is handed down by December, these proceedings will be heard in December, that's to say there is space available for them to be heard in December," Justice Heydon said.
In the meantime, both parties agreed that 48 hours notice during working days must be served by the police commissioner of an intention to impose an interim control order on any one of the Hells Angels 46 NSW members.