Three alleged outlaw motorcycle club members have recently lost their appeal against strict crime prevention orders in the High Court of Australia. The men argued that the orders, which were imposed against them by the NSW Supreme Court in October 2018 and restricted their movement and associations, infringed on the integrity of the courts under the Constitution. However, the High Court found the regime constitutionally valid.
The Serious Crime Prevention Orders Act was passed in 2016, and applies to people involved in ‘serious crime-related activity’. The Court has the power to make a Serious Crime Prevention Order (SCPO) against a person if satisfied:
- that the person has been convicted of a serious offence or
- that the person was involved in a serious crime-related activity for which the person has not been convicted of a serious criminal offence (being the reason for being acquitted or not charged), and
- that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime-related activities.
A ‘serious offence’ is defined in the Criminal Assets Recovery Act to include
- supply, cultivation and trafficking of prohibited drugs
- serious theft, fraud, money laundering, extortion, violence, bribery or corruption offences
- serious offences including harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery
- some firearm offences
- sexual servitude offences
- child abuse offences
- participation in criminal groups
- destroying or damaging goods valued at more than $500
- attempting, conspiring, inciting or aiding or abetting any of these offences.
A ‘serious crime-related activity’ includes anything done by a person which would be classified as any of the above offences, regardless of whether the person was tried or not, has been acquitted, or has had a conviction quashed or set aside.
What orders can be made?
An SCPO can consist of any prohibitions, restrictions or requirements that the court thinks appropriate to protect the public by preventing, restricting or disrupting involvement by the person in serious crime-related activities. However, the court cannot order that the person answer questions or provide information that is subject to client legal privilege or is protected confidence. Any information that the SCPO does require the person to disclose cannot be used in civil or criminal proceedings against that person.
An SCPO can be made for a period of up to 5 years. The maximum penalty for breaching an order is $33,000 or 5 years’ imprisonment, or both.
What was the High Court case about?
On 5 October 2018, the NSW Police Commissioner Mick Fuller applied to the Supreme Court, seeking the application of an SCPO to Damien Charles Vella, Johnny Lee Vella, and Michael Fetui. The three men were alleged to be outlaw motorcycle club members, and the Commissioner asserted that each of the men had been convicted of serious criminal offences. The Commissioner also contended that they had also been involved in other serious criminal activity for which they had not been convicted. Ultimately, the Commissioner alleged that there were reasonable grounds to believe that making an SCPO would protect the public by ‘preventing, restricting or disrupting involvement by each of the plaintiffs in serious crime related activities’.
The SCPO was imposed against the men for two years, and restricted them from:
- associating with any motorcycle club members
- attending premises associated with motorcycle clubs
- travelling in a vehicle between 9:00pm and 6:00am (except in the case of a medical emergency)
- possessing more than one mobile phone
- possessing any weapon
- wearing any outlaw motorcycle club insignia.
The men appealed the imposition of the SCPO to the High Court, arguing that the SCPO Act itself was invalid because it is inconsistent with Ch III of the Constitution, and undermines the integrity of the courts. The men relied on the Kable Principle to contend that the SCPO Act impermissibly intrudes into the processes and decisions of courts.
The High Court ultimately held that the SCPO Act was valid and did not infringe the Kable principle. The High Court found that Courts making SCP Orders still have ‘substantial judicial discretion’ and are not acting ‘at the behest’ of the government. The SCPO Act merely establishes the broad principles that are to be developed and applied by the courts, rather than prescribing exactly how the courts are to act. Before imposing an order, the court must consider a number of factors, including
- whether there is a real likelihood that the person against whom the order is sought will be involved in a serious crime related activity
- whether the facts establish reasonable grounds to believe that the potential order would prevent. restrict or disrupt serious crime related activities
- whether the order is appropriate for the purpose of protecting the public and
- whether any appropriate order should be made.
According to the High Court, the courts should be the ones to exercise these powers.