The Federal Government is under scrutiny for failing to seek an injunction under international law to temporarily stop Japanese whaling, and thereby halt further chaotic incidents involving protesters.
However, Prime Minister Julia Gillard called for patience and condemned the boarding of the ship, Shonan Maru No2, by three activists.
''I feel very strongly about whaling ... I know many Australians rightly do,'' she said yesterday. ''But we are taking the most effective action we can against whaling, through the International Court of Justice.''
The trio will be picked up from the Shonan Maru No2 by a Customs vessel Ocean Protector after the Japanese Government agreed yesterday to release the protesters, rather than take them to the Antarctic and Japan.
However, one of the advisers on the preparation of Australia's case, Professor Don Rothwell from the ANU, questioned Ms Gillard's stance.
''The Government has not explained why it has not sought to go to the court and seek what are called provisional measures,'' he told The Canberra Times.
''These are a form of international injunction that were open to Australia from the time they commenced the case back in June 2010.
''As far as I know, no one in the Government has given any explanation as to why, when that option is open to them, they have not gone down that path of seeking provisional measures.
''The importance of provisional measures in this context is that if Australia had been successful in gaining provisional measures, the Japanese whaling program would have been stopped in its tracks until such time as there had been a final determination of the matter by the court.''
Professor Rothwell, an expert in international law, predicts the case in the International Court of Justice will not be heard until 2014, with a judgment six to nine months later.
Japan has until March this year to reply to Australia's case, but each side will then have another round of replies, pushing back the formal hearing.
Ms Gillard warned other protesters against boarding the Japanese whaling fleet in the Southern Ocean, saying there was no guarantee they would also escape prosecution.
''People might want to make their views heard and they should but people need to make sure they stay on the right side of the line and engage in legal activity,'' she said.
Ms Gillard said the full cost of the operation by the Ocean Protector to pick up the men from the Japanese vessel would not be known until the transfer was completed.
''But we are talking in the vicinity of hundreds of thousands of taxpayers' dollars, that does concern me,'' she said.
Attorney-General Nicola Roxon said while many Australians want whaling to stop, they might resent paying for the rescue of the protesters. She acknowledged the action in the International Court of Justice was likely to take years.
''The international courts don't move fast and I know that that is a cause for frustration, but ultimately as a government we have to behave within the law, we have to use the law. It's a big step for us to have taken as a government, something that previous governments talked about and never did, to take this action against Japan, particularly when they are such a close diplomatic relation on all other matters.
''We think the best way for us to be able to stop whaling once and for all, is the procedures that we're taking in the International Court of Justice.''
Opposition environment spokesman Greg Hunt said the Coalition would consider supporting a proposed Greens' Bill requiring Australia to patrol the whaling grounds in the Southern Ocean, although it had yet to see the detail.
The Greens have previously called on the Government to seek an injunction in the International Court of Justice against whaling. Greens Leader Bob Brown said the activists were heroes and the Government was to blame for the incident.
This reporter is on Twitter: @rosspeakect
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