Descendants leaders lose Full Court appeal over deportation

Two Adelaide brothers and founding members of the Descendants who were vocal critics of SA’s anti-bikie laws have lost a vital appeal against being deported from Australia.

Two of the state’s most senior bikies have lost a Federal Court appeal against their deportation from Australia.

The Full Court of the Federal Court unanimously dismissed appeals by Descendants founders Tom and Perry Mackie against a similar finding in a judicial review by a single judge.

The Full Court decision clears the way for their deportation by the Department for Home Affairs – unless they lodge a further appeal to the High Court.

The Mackies were taken into custody at their Ingle Farm and Prospect homes in December 2021 after their temporary visas were cancelled on character grounds.

They have been held in the Broadmeadows Immigration Detention Facility in Melbourne since.

Tom Mackie is a founding member of the Descendants.

Descendants bikie Perry Mackie. Picture: Facebook

The decision to deport the pair, made by then home affairs Minister Peter Dutton, took into account their criminal records and their vocal opposition to South Australia’s anti-bikie laws when introduced in 2008.

Their original applications for a judicial review stated the decision was affected by jurisdictional error by Mr Dutton.

They claimed Mr Dutton took into account “as a matter’’ supporting his conclusion that it was in the national interest to cancel the Mackies’ visas because of their “lawful and peaceful involvement … in political communication and organisation in opposition to legislation prohibiting association between members of declared organisations”.

In a lengthy judgment last October Justice Tony Besanko rejected the brothers’ grounds of appeal and affirmed a decision by the federal government to deport them back to New Zealand.

Lawyers acting for the pair then launched an appeal to the Full Court of the Federal Court and instructed NSW appeal barrister Bret Walker SC, whose former clients include George Pell and Christian Porter.

Club patch of Descendants Motocycle Club.

Before a hearing of the Full Court of the Federal Court in May, Mr Walker argued comments made by Thomas Mackie in 2009 urging opposition to proposed anti-bikie laws were examples of free speech.

However, in their Full Court judgment Justices Rares, Mortimer and O’Sullivan dismissed both grounds of appeal.

“ … there is nothing irrational or illogical in the Minister linking the appellants’ role within the Descendants OMCG with the garnering of support by that organisation among a number of other OMCGs to oppose legislation designed to curb their activities, as the information before the Minister described those activities,’’ it states.

“There was nothing irrational or illogical in the Minister then linking these findings with a preparedness on the part of the appellants in the future to disobey Australian laws.

“The Minister had found the appellants had in the past been prepared to disobey Australian laws, both as individuals and through their involvement with the Descendants OMCG.

“The Minister had made a number of findings about the activities of the Descendants OMCG as reported to him, in particular their contended participation in organised crime activities.

“It is neither irrational nor legally unreasonable to infer in those circumstances that the

appellants’ opposition, through the Descendants’ OMCG, to the anti-biker legislation itself was

connected to a desire to continue involvement with the kinds of activities the information

before the Minister had described as undertaken by OMCGs.’’

The Mackie brothers, who formed the Descendants in 1974 when they arrived in Adelaide from New Zealand, were vocal critics of SA’s anti-bikie legislation when it was introduced in state parliament in 2008.

If deported, the brothers will join more than 300 bikies and organised crime figures to be booted out of Australia on character grounds.

They include failed bikie boss and petty criminal Vince Focarelli and senior Mongols MC member Andrew Peter Stevens. Stevens, a member of the Finks before it was patched over by the Mongols, fought and lost his deportation in the courts.