Argument may be unwise but it is sound

JULIA Gillard's attack on the High Court may be poor politics, but her argument is convincing.

This majority decision is unwise, a major reinterpretation of the Migration Act and an unjustified intrusion into the realm of asylum-seeker policy.

The evidence for such claims is the minority judgment of Dyson Heydon.

It is the most persuasive. It argues that Immigration Minister Chris Bowen has sufficient discretion to make his declaration, that he acted consistent with parliament's original intention and this judicial intrusion into external relations is a "potentially dangerous course".

The Prime Minister has no hope of halting the universal chant of Labor incompetence but, on this issue, that misconstrues what has happened.

The real story is the magnitude of the court's intrusion into the executive realm by substituting its own policy for that of the government.

It has gone too far.

This decision humiliates Labor, strikes a blow against a substantial effort to halt the boats and gives non-citizens not yet found to be refugees rights  that inhibit any Australian government acting in the public interest from negotiating regional and offshore processing arrangements.

Where Gillard is on weak ground is her implication Nauru might not meet the High Court's elevated tests. This decision lifts the bar, but does not find against offshore processing as such.

The reality is that a Coalition government, with Nauru's co-operation, will deliver sufficient legal guarantees to pass muster for its policy with the High Court.

Opposition legal affairs spokesman George Brandis was certain on this point. What the Coalition is blind to is that such assertion of judicial power must work against an Abbott government.