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Winter 2004 cover

National Observer Home > No. 61 - Winter 2004 > Legal Notes

The Inappropriateness of Political Appointments: Alastair Nicholson C.J. Leaves the Family Court

I.C.F. Spry

In Australia political appointments - the appointment of judges otherwise than on merit - have an unfortunate history. Out of many examples one may take Sir John Latham, a political appointment as Chief Justice of the High Court, who was profoundly disappointing; Senator Lionel Murphy, who was revealed as having criminal associations and carrying on criminal activities; Michael Kirby, who revealed himself as an activist in favour of homosexuals; and so on.

Alastair Nicholson was a further political appointment, who was made Chief Justice of the Family Court in 1987 by the Hawke government. Mr. Nicholson was by no means the most capable person available for this appointment, which was ascribed by many to his associations with members of the Australian Labor Party.

As Chief Justice, Mr. Nicholson frequently entered into public controversy, although this behaviour was inappropriate for a judicial officer who ought to have been careful to prevent the perception of bias and prejudice on his part.

His decisions in the Family Court were often disappointing, and on occasions were apparently explicable only by reference to personal dispositions on his part. A particularly shameful example of his judicial activities was examined by the High Court in April 2004 in Minister for Immigration v. B.1  This case concerned children who had been detained in an immigration centre in accordance with the Migration Act. A number of children made application in the Family Court (an apparently inappropriate jurisdiction) for an order that the Minister be required to release the children from the detention centre. The trial judge, not surprisingly, refused the application, but on appeal the Full Court held by majority (Nicholson C.J. being apparently the driving force in the majority) that the children's application should be granted. Nicholson C.J. was quick to hold that the Family Court could make orders in this matter against third parties, and also held, predictably, that the detention of the children was unlawful in view of the United Nations Convention on the Rights of the Child.

The Full Court of the High Court - all seven judges - unanimously reversed the decision of the Family Court and rejected Nicholson C.J.'s reasoning. The High Court held that the Family Law Act did not give the Family Court power to determine the validity of the detention of an unlawful non-citizen child or to make orders interfering with the operation of the Migration Act.

The judgment in the High Court of Callinan J. is of particular interest in demonstrating the fraudulent actions of many illegal migrants to Australia. The father of the children in this case had arrived in Australia unlawfully and had then claimed to be a refugee from the Taliban regime in Afghanistan. However the Refugee Review Tribunal held, on applications for visas by the mother and the children, that in fact they were nationals of Pakistan, not of Afghanistan, and a similar finding was made in respect of the father. The father then unsuccessfully applied to the Federal Court, and again to the Full Court of the Federal Court, and it may be noted that through a number of claims apparently based on fraud he caused very large amounts of legal costs to be cast on taxpayers2  and much time of Australian courts to be consumed.

Alastair Nicholson's final triumph as Chief Justice of the Family Court was thus to deliver a judgment in favour of illegal immigrants that was clearly erroneous, that was overturned by a unanimous High Court and that apparently reflected his own political prejudices.

 1. Judgment in this case was given on 29 April 2004.

 2. The cost to the revenue of the legal expenses of, and caused by, illegal immigrants to Australia is unjustifiably great. There is no good reason why any person who is refused a visa should have his costs of challenging that decision borne by the Commonwealth and hence by taxpayers generally. In the Herald Sun of 2 May 2004 Mr. Andrew Bolt discussed how the family here in question "knew nothing about Afghanistan, not even its currency, and spoke with a Pakistani accent". Later journalists visited the small Afghan village the family claimed to come from, and could not find any person who knew them. Indeed, immigration officials obtained two family registration documents in Pakistan that proved that the father was born and brought up in Pakistan and worked as a plumber and electrician in Pakistan. Mr. Bolt concluded, "Since being tagged a fake in 2002, Mr. Pakistan has had his protection visa cancelled and his application for a bridging visa rejected by the Minister, that last decision upheld by two tribunals, a bid to review it all turned down by the Federal Court and an appeal lodged with the Full Court of the Federal Court."

An important lesson from this and many other cases is that the Commonwealth (and hence Australian taxpayers) should not fund any of the legal costs of applicants for any Australian residency visas.

National Observer No. 61 - Winter 2004