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Australia: High Court Declares Anti-Gang Law Invalid

(June 27, 2011) On June 23, 2011, the High Court of Australia declared that a New South Wales law aimed at combating organized crime is invalid. (Wainohu v The State of New South Wales [2011] HCA 24; see also High Court of Australia, Wainohu v The State of New South Wales [2011] HCA 24 (Judgment Summary) (June 23, 2011).) The Crimes (Criminal Organisations Control) Act 2009, which was introduced following a deadly brawl between motorcycle gang members at Sydney Airport, provided for judges to declare an organization to be a criminal group and issue “control orders” that banned the association of individual members. (Bikie Law Declared Invalid as Hells Angel Wins Challenge, THE SYDNEY MORNING HERALD (June 23, 2011).) Gang members who were in contact with each other in breach of control orders faced being sentenced to a term of imprisonment of up to five years upon conviction.

The legal challenge to the law was brought by a single Hell's Angels member. The plaintiff argued that the law impinged on the “implied” constitutional rights of freedom of political communication and political association and that the functions it conferred on the New South Wales Supreme Court were inconsistent with the Australian Constitution. A majority of the full bench of the High Court (Australia's highest court) agreed that the absence of the need to give reasons for a declaration regarding a group was incompatible with the Supreme Court's institutional integrity. Because the remainder of the legislation, including the control order provisions, relied on the validity of this aspect of the law, the whole Act was declared invalid. (High Court of Australia, supra.)

The New South Wales law was partly based on South Australian legislation, aspects of which were held to be unconstitutional in 2010. (Miles Godfrey, Hells Angel Kills NSW Anti-Bikie Laws, THE SYDNEY MORNING HERALD (June 23, 2011).) The President of the Law Society of New South Wales, as well as an academic and the President of the Police Association of New South Wales, were reported to have voiced concerns about the law. “I have great concerns about laws which criminalise membership in organisations as opposed to individual criminal behaviour,” Dr. Christopher Michaelson, a University of New South Wales Faculty of Law senior research fellow, said. “This is much the practice of dictatorial regimes with little regard to the right to assembly and freedom of organization.” (Id.)