Prime Minister Criticises High Court for Malaysian Swap Case

The integrity of Australia’s government has always depended on the vitality of the doctrine of the separation of power.

It is in this division that each arm of government is monitored and checked by the others. Naturally, resulting from this, there must be some element of independence displayed in each arm. However, the fact that our executive government is formed by the majority housing the legislature blurs this need for independence. All that remains to safeguard the liberties of Australians, and indeed even aliens, from the abuse of the executive government is the judicial independence of the courts.

The pertinent question, therefore, is how one should respond to the Prime Minister’s criticism of the High Court’s recent decision regarding the Malaysian asylum seeker swap. Ms Gillard has adamantly stood in defence of her comments that the court’s decision represented a ‘missed opportunity to send the strongest possible message to asylum seekers not to risk their lives at sea and get into boats’ and that ‘the current Chief Justice of the High Court, His Honour Mr Justice French, considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one the High Court made [in this case].’ Ms Gillard has said that she would not withdraw her comments, and that the public is entitled to the facts about the shift in the law that flowed from the judgment. Within reason, her comments reflect the need for public scrutiny of judicial decisions and are therefore legitimate.

The High Court is not a perfect institution that is immune from public scrutiny and it must be noted that this is not the first time it has come under fire. The Prime Minister’s remark regarding what she perceives as an inherent contradiction of earlier decisions is perfectly legitimate. The accuracy of its claim is not an issue to be considered. What matters is that just as the executive government can be scrutinised by the courts for any activity perceived to be illegal or unconstitutional, so too can the judiciary be scrutinised and criticised for decisions that may be publicly interpreted as contradictory. This is to ensure that the integrity of Australia’s government is never compromised and to maintain the rule of law.

To read more about the PM’s comments, please click here. 

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