South Australia v Totani

High Court of Australia
Established	1903
Country	Australia
Location	Canberra, Australian Capital Territory

South Australia v Totani [2010] HCA 39 is a decision of the High Court of Australia on the issue of Separation of Powers under the Australian Constitution.

Members from several clubs meet at a run in South Australia, 2009 to protest the laws.

Background

In 2008 there was a move for controlling the activities of Outlaw Motorcycle clubs by numerous Australian state governments that culminated in the South Australian Parliament introducing the Serious and Organised Crime (Control) Act 2008 (SA). The effect of this legislation was to allow… the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations, their members and associates.

Specifically section 14, that read:

The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.^[1]

One such order was made, controlling Sandro Totani from associating with Donald Hudson, both members of the Finks Motorcycle Club. Both men appealed the control order to the state supreme court, which overturned the order with a 2:1 majority.

The State of South Australia then appealed that decision to the High Court of Australia. This appeal was dismissed by the High Court 6:1 with only Heydon J dissenting.^[2]

Decision

The courts decision was based in part on their concern that the Act infringed common law freedoms for the individuals involved, but mostly on the prospect of a Parliament directing courts and thus affecting the separation of powers under the constitution.^[3]

The High Court majority agreed with the reasons decided on previously in the Supreme Court of South Australia ^[4] referring to the citation made of Kirby J's dissent in Thomas v Mowbray^[5]

"Requiring such courts, as of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the Executive Branch of Government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution."

References

1. Serious and Organised Crime (Control) Act 2008 (SA) s.14.
2. Totani v South Australia (2009) 259 ALR 673.
3. George Williams, Sean Brennan and Andrew Lynch, in Blackshield & Williams: Australian Constitutional Law and Theory 5th edition
4. TOTANI & ANOR v THE STATE OF SOUTH AUSTRALIA [2009] SASC 301 (25 September 2009)
5. Thomas v Mowbray [2007] HCA 33 (2 August 2007)