Yesterday, the High Court confirmed the decision of the South Australian Supreme Court that Section 14(1) of the South Australian Serious and Organised Crime (Control) Act is invalid.

Section 14(1) requires a magistrates court, on application by the Commissioner of Police, to issue a control order against a person if the court is satisfied the defendant is a member of a criminal organisation, as declared by the Attorney-General.

The High Court found the provision invalid because it required the court to act as little more than a rubber stamp for the decisions and actions of the South Australian Government and therefore interfered with the independence and impartiality of the court.

Law Council president, Glenn Ferguson, said the decision demonstrates the vigilance with which the integrity and independence of the courts is safeguarded in Australia.

“The judgment shows that the High Court will not tolerate government regulation which attempts to provide a veneer of judicial legitimacy to what is, in effect, a purely Executive process,” he said.

However, Ferguson also noted that the matter was decided on relatively narrow grounds and that the court was not concerned with evaluating the legislation from either a public policy or human rights perspective.

The Law Council has a number of concerns with the South Australian legislation, and similar legislation which is in operation in other jurisdictions, which the court was not required or even able to consider.

“The so called anti-bikie laws, which have spread across Australia, are an unfortunate example of Australia’s anti-terror laws creeping into and influencing ordinary law enforcement.” Ferguson said.

“These laws try to shift the focus of criminal liability from a person’s conduct to their associations. As a result they have the potential to unduly burden freedom of association. They also have a disproportionately harsh effect on certain sections of the population who may be exposed to the risk of criminal sanction simply because of their family or community connections.”

The Law Council said legislation of this type assumes that clear lines can and should be drawn between a certain criminal class and the rest of society.

“Unfortunately this does not reflect the reality of our community where in extended family groups, public housing, the workplace, pubs, clubs and other formal and informal community organisations, the lives of people intersect.

“The fight against organised crime is an important one, but it’s vital we implement legislation that does not diminish the rights and freedoms of the Australian people or turn traditional notions of criminal justice on their head.”