By Malcolm Fraser
JULIA Gillard's criticism of the High Court after it scuttled the government's so-called Malaysia solution may be the first general attack by a prime minister on the court.
Some commentators have suggested the Prime Minister's criticism was legitimate. Both she and such commentators misconceive the appropriate relationship between government and courts. It is essential that the courts, and more particularly the High Court, not be drawn into direct political controversy. That means that its decisions must be accepted as the ultimate determination of the law as it stands.
'Respect of due process is vitally important to good decision-making.'Credit: Louie Douvis
When prime minister Ben Chifley lost the bank nationalisation case, the court and its judges were not criticised. When prime minister Robert Menzies lost the Communist Party Dissolution Bill, he accepted the decision as a true statement of the law of the time, even though he tried to change that through a constitutional referendum, which he subsequently lost.
Chifley and Menzies understood that it is essential to the proper operations of our society to make sure that the courts not become part of the day-to-day stuff of politics.
Gillard shows no understanding of that point.
Nor did former deputy prime minister and National Party leader Tim Fischer when he substantially criticised the court for its Mabo decision. Nor did Howard government attorney-general Daryl Williams, who argued extensively that it was not the role of the attorney-general to defend the courts, implying that they could defend themselves.
Williams as attorney-general also in effect denied his role as first law officer of the Commonwealth. He denied there was any link between longstanding British practice and Australia, an unusual argument for a conservative attorney-general.
The general nature of Gillard's attack elevates the importance of this issue.
Due process is critical to good government. Respect for our institutions is important. Recent debates have brought today's Parliament to the lowest ebb in public estimation, perhaps in the whole history of the Commonwealth.
It is central to our society, to its stability and to its purpose, that the courts remain above and beyond the political fray.
The court process has been carefully structured - initially derived from British practice - through the centuries. It has been designed to keep the judiciary outside the disputation of politics.
If the courts become subject to political criticism, if they are put under political pressure by a prime minister, there is a grave risk that the opposition will then enter the fray and the court becomes the plaything of politics in a way that will diminish the court and respect for the courts.
If political attacks on the High Court are returned in kind, as will ultimately happen if the present practice continues, then the courts do become part of the active political process. That would be very much to the detriment of the courts and to stability in our society.
It is worth noting that the current Attorney-General, Robert McClelland, when he was in opposition, took an uncompromising view that ''the attorney-general has a clear obligation as chief law officer of this country to defend the institution of the judiciary''.
The government's role in relation to the High Court is to select the best possible people to sit on that bench. But then the judges are independent, owing no particular obligation to that government or any other. Their duty is to the law and the maintenance of the law, to its interpretation as it stands.
Taking actions that would ultimately drag the court into public defence of its decisions, clearly enunciated, demonstrates a total lack of process. Perhaps this is not surprising, because one of the major things wrong with this government and also its predecessor has been a lack of due process, a lack of understanding that process is vitally important to good decision-making. Due process involves the proper examination of an idea not only by ministers but in the first instance by departments.
Due process is a phrase often used to refer to matters of the law in particular, but it is just as important in matters of government - the structure of cabinet and the status of the public service are all critical to due process and a good government.
It was Ben Chifley who said that, ''One man and a dozen fools would govern better than one wise man alone''. Consultation, the search for different points of view before policy is finally determined, is critical to government.
If the government has the wit to see it, this High Court case would give it the opportunity to re-establish Australia's humanitarian program on a sound basis with onshore processing, to re-establish our humanitarian reputation and to end the demeaning debate that has created a toxic atmosphere between our political parties, a debate that has been watched overseas and which has affected our reputation in serious ways.
While these issues would not have been part of the High Court's consideration, they do provide an opportunity for Australia to recapture the high ground.
It seems that this is unlikely to happen. All the indications are that the government is going to try and alter the law to legalise its Malaysian solution. That would certainly be an opportunity lost.
Malcolm Fraser was prime minister from 1975 to 1983.
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