Federal Court documents reveal one reason why Adelaide bikie brothers Tom and Perry Mackie are being booted out of Australia

Federal Court documents have revealed a key factor in the decison to cancel the visas of two Adelaide bikies and deport them to New Zealand.

The two founding members of the Descendants are being kicked out of Australia partly because of their public actions in unifying all bikies against SA’s new anti-gang laws more than a decade ago, Federal Court documents reveal.

Lawyers acting for Tom and Perry Mackie claim Home Affairs Minister Peter Dutton’s decision to cancel their visas “in the national interest” was made in jurisdictional error because he took into account their “lawful and peaceful’’ actions in opposing the laws.

They also claim the action was taken based on an incorrect understanding of the law surrounding spent convictions and the Mackie brothers’ failure to declare them on passenger cards.

Applications for a judicial review of a migration decision lodged with the Federal Court reveal the “nonviolent political communication’’ and the failure by the pair to declare their spent convictions were two factors considered by Mr Dutton when he revoked their visas in December.

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, during successful Supreme Court and High Court challenges and when it was subsequently amended.

Tom Mackie at Descendants Motorcycle Club headquarters.

Perry Mackie.

The Descendants – a number of whom are major players in SA’s methamphetamine trade - have been constant targets in major organised crime investigations conducted by SA Police, Federal Police and the Australian Criminal Intelligence Commission.

Tom and Perry Mackie were taken into custody on December 22 at their Ingle Farm and Prospect homes in a joint operation by the Department for Home Affairs, Border Force, SA Police, Australian Federal Police and the Australian Taxation Officer.

They are currently being held in the Broadmeadows detention facility in Melbourne pending the Federal Court action.

The review, revealed by The Advertiser last month, is seeking to have Mr Dutton’s decision quashed and an injunction restraining Home Affairs from acting on it.

The application for review lodged with the Federal Court states the decision was affected by jurisdictional error in that Mr Dutton took into account “as a matter’’ supporting his conclusion that it was in the national interest to cancel Mackie’s visa because of his “lawful and peaceful involvement….in political communication and organisation in opposition to legislation prohibiting association between members of declared organisations.’’

It states Mr Dutton proceeded “on an incorrect understanding of the law’’ in that he misunderstood the concept of “national interest’’ by regarding Mackie’s engagement in nonviolent political communication.

Tom Mackie at the Macclesfield Hotel during the United Motorcycle Council protest ride to raise funds to fight the former Labor Government’s anti-association bikie club laws.

“No decision maker, on a lawful and reasonable understanding of the concept of ‘national interest’ could have regarded the exercise of nonviolent political speech as relevant to the identification of ‘the national interest’….’’ the application states.

“On finding that the applicant’s involvement in unifying OMCGs against anti-bikie legislation was ‘a further example of (his) willingness to disobey Australian laws’ the respondent reasoned in a manner that was unreasonable, illogical and/or irrational.’’

The application also states that Mr Dutton had also made his decision on “an incorrect understanding of the law’’ in relation to Mackie’s criminal record.

It states the brothers were not required to declare convictions on passenger cards, as alleged by Home Affairs, because at the time they made the declarations in May 2011 in Tom Mackie’s case and in March and December 2012 in Perry Mackie’s case, they were spent convictions.

It states the “true legal position’’ was that they were “not required to disclose them’’ as stated under sections of both the Crimes Act and Spent Convictions Act.

A defence to the review applications has not yet been filed.

The reviews are listed for a case management conference in the Federal Court this Wednesday.