There is nothing in the doctrine of the separation of powers that says Julia Gillard can’t criticise a High Court decision after it has been delivered, huffing and puffing by lawyers and the opposition notwithstanding.
While the doctrine says that the legislature, the judiciary and the police must all act independently, it doesn’t say that they should each act without comment by the others, or in some cases supervision. Just as it is fine for judges to criticise the legislature for poor legislation, or for forcing it to judge in a way it deems inappropriate (think mandatory sentencing for example), it is fine for the legislature, or members of it, to criticise the judiciary, or individual judges.
Indeed, the law is combative and a way of effecting change. Without challenge and discussion we would never get any advances in law. Judgements tend to be existential, and over time what seems right at first may come to seem wrong later (think the Harvester Case, for example).
The relationship between the courts and the legislature is in fact quite complex as it often involves two-way flows. For example the courts may over-rule legislation which the legislature may then change so as to alter the effect of the legislation and circumvent the court ruling. They may even do this retrospectively (although retrospective legislation is generally regarded as bad), so that it was as if the court effectively didn’t get to rule in the first place.
What a politician should never do, and this applies equally to any other citizen, is to try to influence the proceedings of a court while they are in train, except through the court processes available to them.
So Gillard’s criticism is entirely permissible. It also appears to be wrong. Justice French appears not to have contradicted himself in this judgement, and it is yet another example of the PM citing someone as having “questions to answer” but then not really being able to come up with any.
I think the government ought to have seen this coming as well.
The Malaysian solution offered a more potent deterrent than any of the Howard Government’s offshore processing options precisely because the Malaysian attitude to refugees and human rights is not as humane as our own. In the case of Nauru and Manus Island the detention centres, while placed offshore, were essentially run to Australian standards, by Australians.
That would not be the case in Malaysia where asylum seekers released into the community have no ability to work, or to collect social security benefits.
As a matter of principle I cannot see that we should be able to effectively contract out of our humanitarian obligations by subcontracting them to a third party. It is no different from the US sending political prisoners to other countries to have them tortured because torture is forbidden in the US.
The Malaysian Solution was our own version of rendition.
Perhaps if the refugee lobby had not been wedged between wanting to keep Labor in power and its own professed standards it would have seen this judgement coming. As it is, only a portion of it seems to have.
Certainly, when the highest court in the land finds 6-1 in favour of a proposition, there should be a large body of competent lawyers who would see it the same way if they were looking at the issues objectively and without bias.