In an email to the SA Bar Association membership, president Andrew Harris QC raised concerns about the Statutes Amendment (Serious and Organised Crime) Bill 2015, which is currently before parliament.
The legislation declares 27 outlaw motorcycle gangs to be “criminal organisations” with its members subject to restrictions, and gives parliament the power to amend this list with no judicial intervention.
Previously, the Supreme Court had jurisdiction to decide which entities were “criminal organisations”, Mr Harris said.
Mr Harris acknowledged organised crime was a serious problem, but expressed concern that the Supreme Court had been cut out of the process of identifying whether a gang came under the legislation.
“I, for one, support strong and innovative approaches to dealing with outlaw motorcycle gangs however that does not mean handing a blank cheque to the executive arm of government on the basis that the ends justify the means,” he said. “In some cases – and this Bill is one of them – they do not.”
In Mr Harris’ view, judicial oversight over the executive could be undermined by the new regime.
“The provision for oversight of the executive by the judiciary in order that fundamental legal rights are not trampled was not an original thought of the parliament in 2008 when it enacted the first Bikie Act. To the contrary, the concept may be traced to an event which occurred 800 years ago today,” he said, referring to the anniversary of the Magna Carta.
If the decision is left to parliament, he suggested politics would “inevitably intrude” on which groups were included.
“How, for example, will the Opposition be able to challenge issues in the debate without being criticised as being soft on crime?”
He pointed to the legislation's inclusion of the Phoenix Motorcycle Club – which he described as a “gang of overweight accountants who consort with one another outside coffee shops on weekends” – as an example of how the decision-making process has already been compromised by politics.
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