South Australia is pursuing steps to align their Bikie laws with that of Queensland.
On the 11th of November 2010, the High Court ruled the Serious and Organised Crime Control Act (2008) unconstitutional in a 6 1 decision. The challenge, brought by the Fink Motorcycle Club, opposed the South Australian Act on the basis that the imposition of the control orders under this act undermined the integrity of the Judiciary (the court system).
The main issue stemmed from Section 14 (1) of the Serious and Organised Crime Control Act (2008), s 14(1) read as follows:
The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.
Essentially this allowed the Executive arm of the Government to enlist the courts to simply implement their decisions. The courts only role was in determining if the person who the Police Commissioner sought an order against, was in fact a member of the declared organisation. A member can include a prospective member, an associate, or even simply someone who is treated by the organisation as if they are a member. This casts a very wide net of power.
To declare an organisation, the Police Commissioner would apply to the Attorney-General. The Attorney-General would then make a decision. The Attorney-General would not have to publish the reasons for the decision.
Whilst the Act potentially impinged upon some common law freedoms, the Court ruled that the Parliament was essentially dictating terms for the Court to follow. This violates the independence of the courts, and would have a ripple effect upon both State and Federal Courts. This is because some state courts can also exercise Federal jurisdiction.
Queensland and its victory on Bikie gang law
Queensland has its own anti-bikie laws, and unlike their South Australian counterparts, those laws were ruled to be constitutional. In March the High Court upheld the Queensland laws.
The High Court ruling declared that the Queensland Act was “not inconsistent with the institutional integrity of the Supreme Court”.
The court further said, “that while the provisions may depart from the usual incidents of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially.” and â€œthe provisions do not impair the essential characteristics of the Supreme Court, or its continued institutional integrity.”
The Circumstances Leading to the Challenge
The Queensland Police Service (QPS) sought the declaration of the Finks Motorcycle Club as a criminal organisation due to a series of attacks at a Gold Coast shopping centre in May 2012, which injured shoppers and threatened public safety.
The QPS claimed that the Finks Motorcycle Club was involved in the attacks. The QPS believed that the Finks were involved in criminal activities like murder, extortion, robbery and drug trafficking. The QPS also sought to declare a company allegedly associated with the Finks, Pompano Pty Ltd, a criminal organisation.
The Finks and the company Pompano challenged the application by the QPS. They questioned the constitutionality of the law before the High Court, arguing the laws impaired the Supreme Court’s institutional integrity and therefore violated the Constitution. This is the same argument that was used in South Australia. That argument failed however, and the Queensland Act was ruled constitutional.
Much of the controversy revolved around the Police declaring that certain information was in the nature of “criminal intelligence”, which prevented the sources of police evidence from being disclosed to the courts.
The High Court described criminal intelligence as information relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to “prejudice a criminal investigation”, “enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement”, or “endanger a person’s life or physical safety.”
In simpler terms, criminal intelligence was generally information gained in relation to an investigation. The disclosure of that information would lead to the person being investigated to know who any informants are, or where any surveillance is being undertaken. This can put surveillance teams and informants in danger, and also potentially ruin a criminal investigation.
The argument against the use of the Criminal Intelligence protection was that it essentially denies aspects of procedural fairness. A person is having evidence tendered against them when they have not been given notice, nor do they know the full details of the evidence.
What made the Queensland Bikie Laws different to the South Australian Laws?
The difference in SA and Queensland Bikie Laws
The challenged Queensland provisions were Parts 2 and 6 of the Criminal Organisation Act (2009). Part 2 relates to the powers to declare an organisation a criminal entity, whilst Part 6 relates to matters of criminal intelligence.
The COA imposed restrictions on bikie gang members and allows control orders to be placed on organisation members. The law also banned the organisation from associating with each other; restricting them from holding certain jobs or even visiting certain areas. This is certainly quite similar to the South Australian Laws.
Queensland legislators however, learnt from South Australia’s mistakes, and incorporated provisions to ensure the independence of the Supreme Court.
Some of the key provisions of the law includes:
The Police Commissioner must make an application to the Supreme Court to declare an organisation a criminal organisation;
The Supreme Court can make a declaration (to declare an organisation criminal) where it is satisfied that members of the organisation meet for the purpose of engaging in, or conspiring to engage in, serious criminal activity and the organisation is an unacceptable risk to the safety, order or welfare of the community;
Compared to the South Australian Act, where the Attorney-General could simply declare an organisation, on application from the Police Commissioner.
Furthermore in declaring an organisation, the South Australian Attorney-General did not have to give reasons for doing so, but similarly to Queensland, had to respect the confidential nature of Criminal Intelligence.
The Queensland Act took very careful measures to ensure that the applications were cloaked in the authority of the Court system. It not only involved the Court more in procedural aspects, but also enabled it to make full and informed decision based upon evidence that had to be tendered to a Judge.
The Court was not overly concerned with any infringement upon civil liberties, but on the Court system being essentially instructed by the government to make an order.
South Australia and NSW on the move to adopt changes to their Bikie laws
The changes to the SA Serious and Organised Crime Control Act (2008) were initiated by South Australian Attorney-General John Rau, who said that the changes are centred around a government mechanism to appoint a judge to hear Police applications. Essentially, the power of the Attorney-General to declare an organisation will be removed, and placed before the Supreme Court instead.
Attorney-General Rau also pointed out on other areas suited for amendments, which include:
The appointment by the Chief Justice of an “eligible judge” to hear the police application lodged against any gang;
To allow any person to have a copy of the police application and supporting affidavits available to give them an opportunity to inspect any or all documents submitted in court.
Likewise, NSW Premier Barry O Farrell has also said he would replicate Queensland anti-bikie laws in order to protect the public of New South Wales.