Australian ‘Bikie’ Laws in the Absence of an Express Bill of Rights

Two Australian States have recently introduced legislation allowing a member of the Executive to declare an organisation, if it believes its activities pose a danger to the public. The effect of this declaration is that a court must make a control order against members of the organisation, which has the effect that one member of the organisation cannot associate with other members. Jail terms are provided for breach of such orders. An association need not be notified that the Executive is considering declaring them, and may or may not make submissions before the member of the Executive makes the declaration. While no doubt a politically popular response to perceived problems with some motorcycle gangs, there are very serious civil liberties’ concerns with such legislation. It is difficult to challenge such laws in Australia given the lack of an express bill of rights, but it is argued the High Court of Australia could rely on suggestions of a right to due process implicit in the Constitution to invalidate such laws. Further, the laws undermine the principle of separation of powers by, in effect, directing a court as to how to exercise its discretion. Further, it is argued the laws interfere with the right to freedom of association.