September 02, 2011 | Graham

Gillard entitled to be wrong and to criticise the High Court

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.

Posted by Graham at 11:51 pm | Comments (6) |
Filed under: Uncategorized


  1. Graham.Gillard is a total embarassment to herself and the country.She talks to the electorate like an Infants school mistress addressing 5yr olds.

    We don’t care what Julia says or thinks.We stopped listening long ago.The longer the Labor Party keep her,the more devestating will be their loss.

    Their only hope is to reverse the implementation CO2 tax,and put in anyone but her or Rudd in power.

    Comment by Ross — September 3, 2011 @ 4:10 am

  2. Yes,any half competent government would have avoided this type of debacle,any half decent Labor government would have not allowed a relatively minor issue to dominate the political agenda.
    She’s ruining the Labor brand–anyone but Gillard.

    Comment by Russell W — September 4, 2011 @ 3:21 am

  3. Graham, as I remember it, the point of the Pacific Solution was all about putting asylum seekers out of the reach of the benefit of Australian law. If they legislate to bring the Nauru option into line with the High Court’s decision, it will have to be at the expense of the Nauru option’s intended purpose.

    Comment by Nick Ferrett — September 5, 2011 @ 12:32 am

  4. The whole policy was reminiscent of Howard, so why shouldn’t her response (attack the High Court), also be reminiscent of Howard?

    Point taken about politicians being allowed to attack the court, but it’s still a pretty shoddy way for her to behave.

    My take on the whole debacle over at The Roast:

    Comment by Charles — September 5, 2011 @ 3:40 am

  5. Nick, I won’t say “my reading of the judgement” because I haven’t read it, but I’ve sort of absorbed the idea that you can still send people overseas as long as they have reasonable human rights protection, but that it doesn’t demand that the process be exactly the same as Australia’s.

    Although I’ve always had a problem with offshore processing that limits access to the Australian legal system. I think the mark of a civilised country is that you treat everyone the same, whether they are citizens or not, with the exception obviously of things that pertain to citizenship, like the right to vote.

    Comment by Graham Young — September 5, 2011 @ 10:57 am

  6. Charles that shark Tony Abbott was going to use,in your article,was it a “Central Plank” or “bank” we and the refugees should be afraid of ? I’ll take a shark over a central bank any day.

    Comment by Ross — September 5, 2011 @ 2:49 pm

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