A big day in the High Court today, with two decisions set to cause waves.

The first: a ruling that two Sri Lankan boat arrivals were denied “procedural fairness” in the review of their rejected refugee status claims. The unanimous judgement by all seven judges, handed down this morning, found those reviewing refugee determinations were bound to act within Australian law.

The second: a ruling that a provision in South Australia’s anti-bikie laws that allows the attorney-general to make a declaration (on the basis of secret evidence and without giving anyone a hearing) about an organisation such as a bikie gang on the basis that its members are involved in “serious criminal activity”, is unconstitutional.

Both are potentially politically unpalatable decisions for Prime Minister Julia Gillard and South Australian Premier Mike Rann.

So when it comes to the judiciary, maybe it’s best that the leader of the opposition keeps his thought bubbles to himself. Consider these decisions in the context of Tony Abbott’s vague proposition about elected judges, featured this morning on AM:

ALEXANDRA KIRK: Tony Abbott raised the spectre of elected judges at a community forum last night after members of the audience expressed concerns about crime and sentencing.

ABBOTT: I never want lightly to change our existing systems but I’ve got to say if we don’t get a better sense of the punishment fitting the crime, this is almost inevitable.

KIRK: Mr Abbott’s made it clear he prefers the status quo but nevertheless floated the prospect of moving to an American-style judicial system.

ABBOTT: If judges don’t treat this kind of thing appropriately, sooner or later we will do something that we’ve never done in this country, we will elect judges and we will elect judges that will better reflect what we think is our sense of anger at this kind of thing.

Constitutional lawyer George Williams appropriately shot the whole thing down:

WILLIAMS: We need to retain an independent judiciary in this country, judges who are free of politics and partisanship and the worst thing we could do is to mire judges in politics and to undermine the important role they play in our society.

The two High Court decisions announced today underline, highlight and draw a great big red circle around this point.

Thanks, but no thanks, Tony.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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