Judiciary & Anti-Association Laws: Serious Crime Act 2008 Case Study

This case study delves into the judiciary's role in the exercise of judicial power concerning anti-association legislation, specifically focusing on the Serious and Organized Crime (Control) Act 2008 (SA). The Act, viewed as a form of anti-association legislation, has faced criticism regarding its constitutional validity and procedural fairness, particularly its impact on individual freedoms. The study references key cases such as South Australia v Totani (2010) and Wainohu v New South Wales (2011), which challenged the constitutionality of anti-association laws. Real-life situations, such as conflicts between outlaw motorcycle gangs (OMCGs), illustrate the context in which these laws are applied. The analysis also touches upon the objectives of the legislation in targeting criminal organizations and the safeguards required to prevent unjust declarations. This document is available on Desklib, where students can find a variety of study resources including past papers and solved assignments.

The judiciary and exercise of
judicial power
(Anti-association legislation)

Theoretical Approach:
 The Serious and Organized Crime (Control) Act 2008 (SA) has been referred to as
the anti-association legislation. In this presentation, the theoretical approach of Serious
and Organized Crime Act 2008 can be discussed.
The Serious and Organized Crime (Control) Act 2008 (SA) has been considered as a
form of Anti-Association legislation. This is due to the reason that the Act was forming
interplay between the legislative, executive and the judiciary. The purpose of the Act is
to make certain declarations and orders for restricting the existing criminal activities.

Cont.
Traditionally, the nature of the Serious and Organized Crime
(Control) Act 2008 (SA) was such that, it raised a number of
issues. These laws were considered to be rogue and harsh as
it created strict restrictions upon the individuals which
disrupted their peace and freedom of association.
It is evident that in recent era, the Australian government,
from the beginning, was concerned with targeting the
activities of serious crime groups associated with certain
criminal organizations. Therefore, in order to reduce the
activities of such criminal gangs, the Serious and Organized
Crime (Control) Act 2008 (SA) was enacted. Due to this
reason this legislation is referred to as the anti-association

Criticism and objectives:
The Serious and Organized Crime (Control) Act 2008 (SA)
being an anti-association legislation was criticized by various
scholars. In this regard, a number of issues have been raised
which actually questioned the nature of the constitutional
validity of the Act. Some critics also measured the procedural
fairness of the Act.
In order to achieve its objectives, the anti-association
legislation seeks to declare an organization to be a criminal
organization, if such organization is involved in criminal
activities. However, without substantial evidence, the
legislation cannot consider any organization to be a criminal
organization.

Constitutionality:
The Act was considered to be unconstitutional after a
decision was held in the High Court in the case of South
Australia v Totani (2010) 242 CLR 1. The NSW anti
association laws were also held to be unconstitutional after
the decision in the case of Wainohu v New South Wales
(2011) 243 CLR 181 was passed.

Real-Life Situation
It is worthwhile to refer here that, anti-association laws are applicable in
real life situations. However, in regard to certain changes, the legislation
would prove to be beneficial for the police department in preventing
criminal activities. On 22 March 2009, a fight emitted at Sydney residential
aircraft terminal between two criminal cruiser posses (OMCGs), the Hells
Angels and Comancheros, amid which a member was wounded and beat to
death with a metal bollard before voyagers. A couple of days after the fact
his sibling, a Hells Angel who had likewise partaken in the mêlée, was shot
and genuinely injured outside his home. The phenomenal open viciousness
at the air terminal was the subject of exceptional media consideration as of
now pulled in by longstanding strains between the Hells Angels and
Comancheros and episodes of furnished clash between match OMCGs the
Bandidos and Notorious.

Cont.
The first is the affirmation of an association either by the
Attorney-General can be made if the creator is fulfilled that
the association's individuals relate to organize, arranging,
encouraging, supporting or taking part in genuine criminal
movement and the association itself speaks to a hazard to
open security and request. An affirmation is of no restrictive
power of itself. It does not 'prohibit' the association, nor does
it have any impact on the association, its property or
undertakings (Mr Justice Bleby in Totani and Anor v The State
of South Australia [2009] SASC 301, para 39).

Cont.
OMCG fights over respect and medication 'regions' have been pretty much
constant since OMCGs first moved toward becoming pulled in to the lucrative
benefits associated with the medication trafficking business in the late 1960s/70s.
Sporadically this competition has turned out to be open, most famously in the
1984 'Milperra Massacre'. The slaughter, started by the Bandidos break from the
Comancheros in the mid 1980s, prompted a firearm fight including around 60
pack individuals in a lodging auto stop in Sydney's west. The encounter brought
about the shot passing of four Comancheros, 2 Bandidos and a 14-year old female
spectator; 20 others were injured by gunfire. Forty-three individuals were accused
of murder and different offenses and the preliminary was one of Australia's
biggest criminal cases (Harvey and Simpson 1989). Subsequently, changes in New
South Wales guns laws were made however, the inheritance of that occasion has
held on. Quickly, and with some level of over-improvement, this authoritative
model contains two primary advances.

Reference:
Serious and Organized Crime (Control) Act 2008 (SA)
South Australia v Totani (2010) 242 CLR 1
Wainohu v New South Wales (2011) 243 CLR 181
Goldsworthy, Terry, and Laura McGillivray. "An examination of outlaw
motorcycle gangs and their involvement in the illicit drug market and
the effectiveness of anti-association legislative
responses." International Journal of Drug Policy 41 (2017): 110-117.
Ayling, Julie M. "Preventing organised crime Australian-style."
(2016).
Appleby, Gabrielle & Reilly, Australian Public Law (Oxford
University Press, 2018)

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