Three accused New South Wales Rebels bikies have lost their High Court appeal against orders which would impose strict conditions on their movements, including preventing them from associating with other bikies and limiting their mobile phone possession.
Key points:
- The bikies were restrained from associating with other gang members for two years under the order
- Lawyers for the men argued the law was invalid because it was unconstitutional
- The High Court rejected that, saying the courts had substantial judicial discretion
The case was brought before the High Court after the NSW Police Commissioner sought to place Damien Charles Vella, Johnny Lee Vella and Michael Fetui on Serious Crime Prevention Orders (SCPOs), which were made possible under laws introduced in 2016.
Under the SCPO the men would be restrained for two years from associating with any motorcycle gang members or attending any premises associated with them, banned from travelling in a vehicle between 9:00pm and 6:00am — except in the case of a medical emergency — and forbidden from possessing more than one mobile phone.
Lawyers for the men argued the law establishing the orders is invalid because it breaches the constitution by interfering with the independence of the courts.
But today the High Court rejected that, arguing the courts had substantial judicial discretion under the new law.
They found the SCPO Act provided broad principles for the courts to work from, and there are good reasons for such powers to be established.
High Court outlines SCPO conditions
In handing down its findings, the High Court identified six specific steps which should be taken before an SCPO order can be imposed.
The court found that any court considering an SCPO must be satisfied the individual is over the age of 18.
They must also have been convicted of a serious offence, or there must be proof of their involvement in serious offending.
The High Court also said the court must consider if there is a real likelihood the person will be involved in further serious crimes and that the order is needed to prevent crime and protect the public.
It was also noted that other preventative regimes had been upheld by the High Court which require a court to consider the likelihood of future possibilities.
These include preventative orders concerning terrorism, sexual offending and organised criminal activity.
The orders flow on from the state's anti-association laws endorsed by the High Court in 2014.
Repeated challenges against laws rejected
Today's failed High Court bid is the latest in a string of challenges against the laws, which are aimed at controlling alleged criminal activities by bikie gangs.
The new control orders are modelled on laws from the United Kingdom, 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.
But lawyers for them men had argued the laws undermined the integrity of the courts.
"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.
