Tajjour, Hawthorne and Forster v NSW [2014] HCA 35: NSW Anti-Bikie Consorting Laws Upheld
Wednesday 8 October 2014 @ 12.49 p.m. | Crime
Today (8 October 2014), the High Court by majority upheld the validity of s 93X of the Crimes Act 1900 (NSW) which makes it an offence habitually to consort with convicted offenders, generally referred to as the anti-bikie laws in NSW.
Facts of the Case
The anti-consorting laws in NSW were set up at the end of 2012 in order to target bikie gangs. Section 93X, in particular, provides that any person who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those offenders, is guilty of an offence, punishable by imprisonment, fine, or both. In Australian law, to "habitually consort" is understood to mean to seek or accept association or to keep company with persons of a particular class.
Three plaintiffs separately charged with an offence against s 93X brought proceedings in the Supreme Court of New South Wales seeking a declaration that s 93X is invalid. Those proceedings were removed into the High Court.
Each plaintiff then further alleged that s 93X was invalid because it impermissibly burdens the freedom of communication concerning government and political matters implied in the Commonwealth Constitution. Two of the plaintiffs also alleged that s 93X was invalid because it infringes a freedom of association which they said should be found to be implied in the Constitution, and because the provision is inconsistent with Australia's obligations under the International Covenant on Civil and Political Rights.
The High Court Verdict
The High Court accepted that the provision does effectively burden the implied freedom of communication about government and political matters. But the majority of the Court held that s 93X is not invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.
The High Court also unanimously concluded that the provisions of the International Covenant on Civil and Political Rights, where not incorporated in Commonwealth legislation, impose no constraint upon the power of a State Parliament to enact contrary legislation.
Two of the men behind the challenge belong to the Nomads bikie gang but the third man is not a bikie and was charged with consorting while grocery shopping with his housemate.
Next Steps for Bikie Laws
The anti-consorting laws were introduced in the 1920s to tackle Sydney's razor gangs but were later scaled back because of concerns police were abusing their powers. The New South Wales Parliament revived them in 2012 in response to a wave of gun violence involving bikies and organised crime groups, but police said the legislation was never just intended for gang members.
The case is the latest in a series of High Court battles between bikie gangs and State governments. The High Court is also considering a challenge to Queensland's new anti-bikie legislation heard in June.
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Sources:
Tajjour v NSW; Hawthorne v NSW; Forster v NSW [2014] HCA 35
