The Family Court today ruled that detaining children is unlawful. Affirming a previous decision, Justice Strickland said he had “determined prima facie that children are unlawfully in detention and there is a real issue to be tried about that.” Counsel for the children applied for their immediate release pending a full trial which is due to begin on September 15. A spokesperson for the government commented:
“The court has made a decision which we believe is flawed,” he said.
“We are of the view that this is not an order for Family Court determination and the court is acting in excess of [its] power and we have appealed that decision.”
The balance between an overly cautious judiciary and one which bucks at every decision of Parliament has long been debated in the Australian courts. While the Family Court arguably has power to make orders that cut across legislation whose validity is contested, such practices are generally frowned upon as being ‘activist’.
At the same time, the need for checks and balances in our administration of government is highlighted by cases like these. Clearly, a parliamentary majority cannot legislate contrary to the Constitution, and judicial scrutiny is the proper mechanism by which that limit is enforced.
The government is appealing Strickland J’s finding to the High Court.
