The High Court has reached its first decision in the current wars between outlaw bikie gangs and State governments. The majority held that NSW laws designed to prevent people associating with criminals (specifically, bikies), are constitutionally valid.

Criminal bikie gangs are a hot topic in State governments at the moment. Queensland and New South Wales have both had a crack at bringing in a rather extraordinary suite of laws which stop bikies from meeting and conspiring to commit crimes. 

NSW did it by prohibiting a person from ‘habitually consorting’ with a convicted criminal, where that person had been given a warning by police that the ‘criminal’, well, was a criminal. The legislation doesn’t go into much further detail than that. The effect is that once you’ve been given a warning in relation to communicating with a particular ‘criminal’, you can be charged even if only texting each other about The Bachelor.

In its recent decision, the High Court considered whether the law was invalid for burdening the implied freedom of political communication in the Australian Constitution. The Court agreed that the prohibition impinges on the implied freedom, and could further capture a wide variety of innocent conduct (ie. Bachelor chat). However, the majority decided that in the circumstances it is proportionate and reasonably necessary to achieve the law’s purpose, making it valid. In separate dissenting judgments, Chief Justice French and Justice Gageler (former Solicitor-General) said that the laws disproportionately impacted on the implied freedom of political communication. 

In QLD, the salaciously titled Vicious Lawless Association Disestablishment Act 2013 creates special penalties and sentences for bikie club participants. The club doesn’t need to be a criminal gang, but one of its purposes needs to be engaging in some kind of an offence. You’ll be a ‘participant’ in that club if you have attended more than 1 meeting of people who are involved in the club. Might make you want to reconsider your Sunday afternoon watering hole, right? 

The validity of these QLD laws is currently also being challenged in the High Court. It’s a slightly different issue to the NSW laws, and the Court will not need to reconsider the implied freedom of political communication. We’ll keep you updated on the outcome.

The decision of the High Court on the NSW laws will surely be a controversial one. Beyond the bikie gangs, these laws give the police broad powers to prevent criminal associations, or even just friendships. It also gives State governments greater confidence about the chances of similar or more wide reaching laws surviving a High Court challenge.