South Australian Premier Mike Rann has long been obsessed with crushing bikie gangs but his zeal has been checked by the High Court this morning, which ruled unconstitutional a provision in Rann’s anti-bikie laws that allows the Attorney-General to make a declaration, on the basis of secret evidence and without giving anyone a hearing, about an organisation such as a bikie gang on the basis that its members are involved in “serious criminal activity” and that it represents a risk to public safety and order in South Australia.
Once the A-G does this, the Police Commissioner can make an application to the Magistrates Court against any member of that declared organisation to prevent him or her from associating or communicating with other people.
As the High Court says in its judgment handed down this morning, the SA law “requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that court and which is based on executive determinations of criminal conduct committed by persons who may not be before the court”.
In other words it turns the Magistrates Court in South Australia into a rubber stamp of the government. A practice not uncommon in authoritarian regimes but anathema to democracies where the executive and the judiciary and completely separate.
In a 6-1 decision, Chief Justice Robert French said (Justices Gummow, Hayne, Crennan, Bell and Kiefel agreed with him, and Justice Heydon was the dissenter), “it is a requirement of the Constitution that judicial independence be maintained in reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories. Observance of that requirement is never more important than when decisions affecting personal liberty and liability to criminal penalties are to be made”.
One of the other live issues in this case was the capacity of governments to restrict the fundamental right of freedom of association. The SA anti-bikie laws clearly undermine that right. But on this issue the High Court was not so unequivocal. Chief Justice French conceded that governments do have the right to restrict peoples’ movements and their capacity to associate with others. He noted that the SA laws do “not introduce novel or unique concepts into the law in so far as it is directed to the prevention of criminal conduct by providing for restrictions on the freedom of association of persons connected with organisations which are or have been engaged in serious criminal activity.
The area of constitutional scrutiny in this appeal is the interaction between the Attorney-General’s executive declaration of an organisation and the conditional obligation imposed upon the Magistrates Court to make a control order on the application of the Commissioner. It was the constitutional propriety of that interaction which concerned the Full Court of the Supreme Court of South Australia.”
The Rann government was, according to Justice Keifel, seeking to make the Magistrates Court in South Australia simply an arm of government. “The conditions upon which the court must make a control order require the court to give effect to the determination of the executive in the declaration (which implements the legislative policy), without undertaking any independent curial determination, or adjudication, of the claim or premise of an application for a control order by the Commissioner of Police, that a particular defendant poses risks in terms of the objects of the Act,” Justice Kiefel said.
“This has the effect of rendering the court an instrument of the executive, which undermines its independence. Section 14(1) requires the Magistrates Court of South Australia to act in a way which is incompatible with its constitutional position and the proper discharge of federal judicial responsibilities, and with its institutional integrity,” she concluded.