The High Court has reached its first decision in the
current wars between outlaw bikie gangs and State governments. The
majority held that NSW laws designed to prevent people associating
with criminals (specifically, bikies), are constitutionally
Criminal bikie gangs are a hot topic in State governments at the
moment. Queensland and New South Wales have both had a crack at
bringing in a rather extraordinary suite of laws which stop bikies
from meeting and conspiring to commit crimes.
NSW did it by prohibiting a person from 'habitually
consorting' with a convicted criminal, where that person had
been given a warning by police that the 'criminal', well,
was a criminal. The legislation doesn't go into much further
detail than that. The effect is that once you've been given a
warning in relation to communicating with a particular
'criminal', you can be charged even if only texting each
other about The Bachelor.
In its recent decision, the High Court considered whether the
law was invalid for burdening the implied freedom of political
communication in the Australian Constitution. The Court agreed that
the prohibition impinges on the implied freedom, and could further
capture a wide variety of innocent conduct (ie. Bachelor chat).
However, the majority decided that in the circumstances it is
proportionate and reasonably necessary to achieve the law's
purpose, making it valid. In separate dissenting judgments, Chief
Justice French and Justice Gageler (former Solicitor-General) said
that the laws disproportionately impacted on the implied freedom of
In QLD, the salaciously titled Vicious Lawless Association
Disestablishment Act 2013 creates special penalties and
sentences for bikie club participants. The club doesn't need to
be a criminal gang, but one of its purposes needs to be engaging in
some kind of an offence. You'll be a 'participant' in
that club if you have attended more than 1 meeting of people who
are involved in the club. Might make you want to reconsider your
Sunday afternoon watering hole, right?
The validity of these QLD laws is currently also being
challenged in the High Court. It's a slightly different issue
to the NSW laws, and the Court will not need to reconsider the
implied freedom of political communication. We'll keep you
updated on the outcome.
The decision of the High Court on the NSW laws will surely be a
controversial one. Beyond the bikie gangs, these laws give the
police broad powers to prevent criminal associations, or even just
friendships. It also gives State governments greater confidence
about the chances of similar or more wide reaching laws surviving a
High Court challenge.
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