A GREAT DAY FOR FREEDOM

Richar Ackland, 12.11.10, SMH.

The High Court in Canberra yesterday delivered two decisions that struck at the heart of Australia's most divisive and politically-pedalled fears: refugees and criminal gangs.

It was a big day for justice, freedoms and rights. As a consequence, you can be sure the political mugging will be even more unrestrained and distorted.

In the organised crime case, the court by a six-to-one majority struck down the key component of the South Australian bikies legislation. The reasoning was clear - the legislation sought to dictate what magistrates were required to do in implementing decisions of the state government.

This is an exhilarating warning to governments from the highest court - don't trample on the judicial patch.

The vice in the legislation was that it sought to turn courts into rubber-stamps for decisions of the attorney-general and police commissioner. Magistrates were required to sprinkle holy water over the executive's attempts to restrict people's freedom of association if they were deemed to be engaging in ''serious criminal activity'' (even if they weren't).

It was not so much the attempt to control people's freedom of association that concerned the High Court. After all, numerous bits of law do that. It was the obligation that the legislation imposed on the courts to make control orders at the behest of government that was so upsetting.

It goes to the heart of chapter three of the constitution, the provisions that guarantee the independence of the judiciary and quarantine the government of the day from making ''judicial decisions''.

At the moment, chapter three is all we have by way of a national charter of rights. It is limited and its application is far from consistent but in the past couple of years it has been relied on by the High Court in a number of provocative ways.

In February, the court put a big hole in the NSW Industrial Relations Act by striking down the provisions that removed the right to appeal its occupational health and safety decisions to the Supreme Court. In August last year, it struck down the Australian Military Court because the legislation required it to exercise judicial powers without there being proper constitutional underpinning. A year ago today, the court scuttled elements of the NSW criminal assets recovery legislation because it used the word ''must'' in insisting the Supreme Court make orders to restrain bank accounts and other assets without the affected person being put on notice.

NSW has a bikie case that is awaiting a hearing in the High Court. The South Australian act was supposed to be the ''model'' gangs law, and NSW rushed to draw on its framework after the bikie brawl at Sydney Airport in March last year. Even though the police already had sufficient powers to deal with criminals and criminal organisations, the government of ''Red Hot'' Nathan Rees wheeled out its anti-gangs act and got it through Parliament pretty smartly. It drew heavily on the language of the Howard era's terrorism laws, with control orders and decisions made by judges who were deemed ''eligible''. There's plenty of room for the High Court, if it's in the mood, to find that this law, too, flies in the face of the chapter three protections, but you just never know.

Who was the hold-out in the South Australia case? No surprises there - Justice Dyson Heydon, who is more conservative than the Duke of Wellington. His is the lengthiest and most fascinating judgment, and a variety of authorities are cited, including Lenin.

In the refugee case, the court (unanimously) said that the offshore processing of asylum seekers had to be conducted with procedural fairness and according to law. The fact that the former immigration minister Philip Ruddock had tried to deny legal rights to possible refugees by containing them in black holes like Christmas Island did not excuse the ministerial obligation to observe binding decisions of the Australian courts or the Migration Act itself.

Ruddock's invention, we recently discovered, was the result of some creative discussion around his family dinner table.

Already the court's decision is being flagged by the ''stop the boats'' brigade as an open invitation to asylum seekers and people smugglers to overrun our borders.

Not quite. The broader challenges to the Migration Act and the minister's discretion on granting protection visas were not upheld.

The way in which chapter three and rules of procedural fairness are applied by the High Court are far from consistent. After all, the court has held that it is perfectly legal to lock up a person indefinitely without charge. It has also held that secret evidence can be used by courts to make decisions and that can be done without showing the evidence to the party adversely affected and having it properly tested.

Chief Justice James Spigelman of NSW, who would have been chief justice of the High Court had it not been for Kevin Rudd, said something last month that we all know, but least expect judges to say publicly: ''It is all too easy to dress up a conclusion, reached on other grounds, by selecting from the smorgasbord of maxims and principles of interpretation those which assist the achievement of the predetermined result.''

Yesterday was an emphatic statement by the High Court led by Robert French. Further, ministers ignore the law and the judges at their peril. That both major decisions were scheduled to come thudding down from on high on the same day rubs in the points even more forcefully.

justinian@lawpress.com.au