New South Wales bikie gangs laws
1. New South Wales’ bikie gang laws allowed the state’s Commissioner of Police to request a Supreme Court judge to declare any bikie gang a “criminal organisation” if she or he was satisfied that the members of the group were involved in serious criminal activity and represented a “risk to public safety and order” in NSW. This would then allow the Supreme Court to issue control orders, restricting the activities of any member of that group.
2. The President of the NSW Hells Angels Motorcycle Club challenged the constitutional validity of the bikie gang laws, on the grounds that the judge did not need to give reasons for her or his decision when declaring a group a criminal organisation.
3. The High Court agreed that the Act was invalid (to the extent that judgesdid not need to give reasons for their decisions) because giving reasons is a key feature ofthe judicial office that provides transparency and accountability, ensuring judicial fairnessand impartiality. Removing the requirements to give reasons is unconstitutionalbecause of the structural protection of the independence of the judiciary established by Chapter 3 of the Australian Constitution. The High Court noted that state courts are a part of the Australian judicial system created by Ch 3 of the Constitution and that they have a role and existence which transcends their status as courts of the states.
4. The amended law changed the original Act by requiring that judges do give reasons for their decisions. However, it added that these reasons are subject to a confidentiality clause that only permits their disclosure to authorised people – people such as an appellate court and the Attorney General. Members of the group about whom the order has been made are not on the list of authorised persons.