Laws aimed at keeping three accused members of the Rebels bikie gang from associating will today be challenged in the High Court, as the men argue the laws are unconstitutional because they undermine the integrity of the courts.
The three men, Damien Charles Vella, Johnny Lee Vella and Michael Fetui, have taken aim at the New South Wales law called Serious Crime Prevention Orders, which was introduced in 2016.
Theirs is the latest in a string of challenges in the High Court to laws governments in many parts of Australia hope will control alleged criminal activities by bikie gangs.
Five years ago the High Court upheld the New South Wales anti-consorting laws, which make it an offence for convicted criminals to repeatedly associate with each other.
The 2014 decision found that, while those laws did impede freedom of political communication, they were an appropriate measure to prevent crime.
The new control orders are modelled on laws from the UK, and can be applied to people even if they are acquitted of a serious crime, or the charges are dropped, in circumstances where the court believes an order would protect the public.
All of the men bringing the challenge have been convicted of crimes in the past, but issues mentioned in the case also include crimes for which the men were acquitted, and instances where charges were dropped before they went to trial.
The New South Wales Police Commissioner wants the three, who he alleges are Rebels bikie gang members, banned from associating with certain people or going to certain places.
Police also want to place the three under curfew.
Laws undermine integrity of the courts, lawyers argue
Lawyers for the men will tell the High Court the scheme is at odds with the constitution, as they gives the executive government too much power over the court system.
“The SCPO Act erects in substance an alternative criminal justice regime, significantly more favourable to the state and less favourable to accused persons,” submissions filed to the court by the men’s team said.
The lawyers said the Act required NSW criminal courts to administer different grades of justice at the discretion of the executive government.
They argued that took discretion away from the courts and put the law at odds with the constitution.
But the state government will argue that is not the case, and that the Act is necessary to protect the community.
“The SCPO Act is forward looking: In certain circumstances, it authorises — but, notably, does not require — the Supreme Court or District Court of NSW to make a serious crime prevention order where the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public,” lawyers for the state said.
The Commonwealth, Victoria, Queensland, Western Australia and South Australia have all intervened in the case to support the NSW Government, arguing the legislation did not impact the integrity of the courts.