Malaysia Solution judiciary hits back at Julia Gillard's 'unfair' criticism

• Joe Kelly
• From: The Australian
• September 03, 2011 12:00AM

OFFENDED judges and magistrates have hit back at Julia Gillard's criticism of the High Court and Chief Justice Robert French, labelling her attack as "unfair" and "extraordinary".

As Labor waits for legal advice from the Solicitor-General on the High Court's decision to overturn the Malaysia Solution, the Prime Minister was yesterday forced to clarify the intention of her attack.

Ms Gillard said she had sought only to put the facts of the matter on the table because the public was entitled to an explanation and, strengthening her rhetoric, claimed the High Court had "changed the law". "I don't resile from one word of what I said," she told Sky News.

"The simple facts are that there were precedents that obviously those advising us legally drew on. "Some of those precedents are from the current Chief Justice of the High Court himself. "They were part of what the legal advice to us rested on."

Ms Gillard dismissed suggestions she had challenged the separation of powers as "ridiculous" and provided a reassurance her government had accepted the court's decision.

But the Judicial Conference of Australia -- with a membership of more than 600 judicial officers across the nation -- yesterday suggested Ms Gillard had gone too far.

"Responsible criticism by one branch of government of another is a healthy sign of a free society," said the organisation's vice-president, Philip McMurdo.

"Irresponsible criticism, especially from a Prime Minister, could tend to upset the balance of separated powers which is essential to that society."

The JCA said yesterday Ms Gillard's statement that the High Court had missed an "opportunity" to smash the people-smugglers' business model fundamentally misconstrued the role of the court and was "misguided". "It is not the court's role to look for and take 'opportunities'.

Its job here was to decide whether the minister's actions were lawful, according to the statute which the parliament had enacted," the JCA said. Ms Gillard's decision to single out Chief Justice French for special criticism was described as "extraordinary" and "unfair". "He is one of six justices who reached the same conclusion. The seventh dissented," Justice McMurdo said.

The rebuke from the legal community comes as the government prepares to receive the advice of Solicitor-General Stephen Gageler on the consequences of the Malaysia Solution for offshore processing.

The advice, expected within days, is thought to confirm his initial oral counsel to the cabinet on Wednesday night following the High Court's decision to overturn the Malaysia Solution.

Some Labor MPs believe there will be scope for offshore processing to continue despite Ms Gillard's warning that the decision could throw the practice into doubt.

While the Solicitor-General's legal advice could tie the future of offshore processing to the need for further legislation, the opposition says this step is not necessarily required.

"There is nothing in the High Court decision that outlaws offshore processing," opposition legal affairs spokesman George Brandis said.

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