... & today's AGE editorial:
Bringing Dr Haneef back into the fold of the law
August 22, 2007
Justice Spender's Federal Court judgement deftly puts the minister and the Government in their place.
IT FINALLY took the language of the law to extract the strands of clarity, commonsense and caution from the Gordian knot of the affair of Dr Mohamed Haneef and the Federal Government's cancellation of his visa. Yesterday in Brisbane, Justice Jeffrey Spender of the Federal Court ruled that the decision of Immigration Minister Kevin Andrews to revoke the visa was invalid. In a judgement of more than 50 pages, Justice Spender has managed, cleverly, deftly and even elegantly, not only to put the minister in his place, but also the Government.
In his determinations, Justice Spender has surprisingly departed from a previous Federal Court decision of 2001 (the precedent for Dr Haneef having failed his character test) therefore weakening a key Government point and strengthening Dr Haneef's case. The judge has concluded that Mr Andrews used the wrong character test as the criterion for cancelling Dr Haneef's visa, adding that had he applied the right test, it would have been correct to cancel the visa. But, as the judge has meaningfully added, this was in different circumstances, since changed. All this is perhaps of small consolation to the minister, who intends to appeal and is more likely feeling as if he is counting the cost of having answered (a) instead of (b) on Who Wants to be a Millionaire. Yesterday's findings only serve as further confirmation that the Government's motives in its treatment of Dr Haneef were more in the cause of political expediency than any genuine terrorist-related concern.
It is to be hoped, appeals pending, that sense and reason prevail and that Dr Haneef eventually will be allowed to regain his livelihood, wherever he might wish to do so. Wider concerns, such as Australia's human rights reputation and its relationship with India, may take longer to settle. With APEC on the horizon, yesterday's decision could not have come at a worse time for this country's image in the eyes of the world.
More immediately, and more favourably, what could have been a widening breach between politics and the law has been repaired. In order to do so, some polite but firm tactics have been required. Justice Spender's conclusions, for all their restrained phraseology, should be seen as a rebuke. There are, in fact, two judgements ?- the matter of the visa and the broader issue of executive and judicial responsibilities ?- that, in effect, carry the same distinct and unambiguous message: no one can be above the law. The judge, setting up his argument and using appropriate Australian and international legal references to reinforce them, has with subtlety reasserted the judiciary's right to be involved in decisions on some issues that relate in one way or another to matters of national security or matters in the national interest. While not traipsing too far into political territory, Justice Spender makes the point, "
there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security". He quotes a former chief justice of England and Wales, Lord Bingham, on the tensions between law and government, which, he says, "is greater at times of perceived threats to national lawful powers to protect the public, and the duty of the judges to require that they go no further must be performed if the rule of law is to be observed".
The sting comes with this observation from Justice Spender: "It is right to acknowledge the political character of the minister's office, and his accountability to the Parliament, and of the government ultimately to the electorate. The minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the Parliament on him." This remark should be heeded by Mr Andrews as he ponders his next move and, indeed, by all politicians who, for whatever reason, wish to challenge the supremacy of law.
http://www.theage.com.au/news/editorial/bringing-dr-haneef-back-into-the-fold-of-the-law/2007/08/21/1187462262472.html
