SA law 'violates constitution'

[Rev.Cambeul]

http://www.independentweekly.com.au/news/local/news/general/sa-law-violates-constitution/1811389.aspx?storypage=0

HENDRIK GOUT | 24 Apr, 2010

The full bench of the High Court in Canberra is now considering one of the most important constitutional cases brought before it in half a century.

Constitutional lawyers compare its significance with the 1950s ruling about banning communism. [It was declared unconstitutional to ban communists - now the communists are trying to ban us. Cailen.]

This week's case revolves around contentious SA legislation which takes away crucial powers from the courts and gives them to police and Senior Counsel.

An independent SA review has already found that the new law "offends natural justice".

A subsequent legal challenge by two members of the Finks went to the Supreme Court, which found the law violates the constitution.

Since no law can validly contradict the constitution, the Supreme Court ruled the new law was illegal.

The then Attorney-General, Michael Atkinson, launched an appeal to the High Court seeking to have the ruling overturned. [This is the same Attorney-General/Minister for Multicultural Affairs that ordered my home raided, declared all adherents of Creativity to be insane, ordered a locally hosted SA website closed down and had our sites added to internet filters for the purpose of censorship. Cailen.]

Under the law a state politician can ban people from seeing friends without having to say why. People who break these orders will be jailed. It doesn't matter whether the person or their friends have ever been accused or convicted of any crime.

Last year the SA Government imposed a control order on a Finks member, preventing him communicating with other members of the group.

In 1950, conservative Prime Minister Bob Menzies introduced legislation, ultimately passed with Labor support, which banned the Communist Party – at the time the largest political party to the left of the ALP.

The law defined a communist as anyone who supported any of the principles of communism, not just Communist Party members. This meant that trade union or Labor Party members and peace activists could all be "declared". Declared persons were ineligible for Commonwealth employment, banned from working in the coal, shipping and waterfront industries, and could not hold union office.

The High Court found the Act had simply declared the party guilty and had authorised the executive government to "declare" individuals or groups of individuals.

The court decided law was unconstitutional.

Counsel for the Finks, Bret Walker SC, said on Wednesday that under the SA law, an Attorney- General and police commissioner could rely on flimsy evidence to stop bikie members and their associates from meeting.

"There's no requirement from the commissioner to supply all the information known about the reliability of a confidential informer," he told the full bench.

Mr Walker said subjects of a control order had no avenue to challenge the declaration because the police commissioner had no obligation to reveal the contents of secret evidence.

Under SA's Serious and Organised Crime Control Act, the Attorney-General can ask the police commissioner to seek a control order for members of a group merely suspected of "supporting or encouraging serious criminal activity".

Mr Walker challenged the SA Government's argument that an Attorney-General's declaration of a control order and a magistrate's implementation of it were separate and distinct.

"The Attorney-General's findings are un-reviewable and they're binding on the courts," he said.

State, territory and commonwealth governments are arguing the law is nevertheless constitutional.

The High Court has reserved its judgement. Senior Adelaide lawyer Craig Caldicott, a member of the Finks legal team, said he expected a decision within two or three months, "which is fairly quick for the High Court".

Also on Wednesday, the Federal Government ruled out a federal Human Rights Act, despite the recommendation of the government's own inquiry which followed seven months of national consultation.

"Abandoning a Human Rights Act shows a real lack of courage on the part of the Australian Government and leaves this country as the only liberal democracy in the world without national human rights protection," said Amnesty International Australia's Sophie Peer.

Federal Attorney-General Robert McClelland said a Human Rights Act would give courts too much power, and implied that governments were more trustworthy than judges.