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Immigration Minister Kevin Andrews’ defiance in face of Federal Court’s decision an example of unfortunate attitude many Australian politicians have subscribed to over past decade

Posted by gasweek on 2 October, 2007

According to Greg Barns, a member of the Tasmanian Independent Bar, Immigration Minister Kevin Andrews just doesn’t get it, reported The Australian (24/8/07, p. 37).

Immigration Minister outraged at court’s decision: Having been comprehensively defeated in the Federal Court on 14 August when Justice Jeffrey Spender ruled that Andrews had applied the wrong test in cancelling Dr Mohamed Haneef’s visa, the Immigration Minister seemed outraged by the court’s decision, and sanctimoniously told The Australian he had only acted in the national interest.

Attitude of parliamentary superiority: Andrews’ defiance in the face of the Federal Court’s decision was an example of an unfortunate attitude to which many Australian politicians have subscribed over the past decade. It was an attitude which seemed to regard the courts as inferior to the parliament and the executive when it comes to matters of national security.

Govt attitude undemocratic: The Howard Government – aided by the opposition – has on many occasions since 1996 sought to exclude, or severely curtail, the capacity for judicial review of decisions made by government in areas of national security, such as migration and anti-terrorism. Spender’s judgment made it clear that such a view was not only erroneous but undemocratic. His decision in that sense represented a reclaiming of turf by the courts in the area of national security, an area where, since 9/11 in particular, governments have become used to doing pretty much as they like.

Govt demands offend constitutional text and values: In a sense Spender was agreeing with High Court Justice Michael Kirby, who earlier this month lambasted his colleagues for agreeing that the federal Government’s controversial interim control orders, which enabled the authorities to monitor and restrict the activities of innocent individuals, were constitutionally valid. Kirby said his colleague’s decision was further evidence of the unfortunate surrender of the present court to demands for more and more governmental powers, that exceed or offend the constitutional text and its abiding values.

Alliance necessary, friendship and kinship not enough: This week the lone dissenter Kirby, appeared to have found a kindred spirit in Jeffrey Spender. But Spender said Justice Emmett has got it wrong. His view, which was more consistent with a human rights approach to migration law, was that if you are going to take the drastic step of cancelling someone’s visa then you have to show that the visa holder had some link or alliance with the person engaged in criminal activity. Simply being a relative or a friend was not enough. Now it would be up to the Full Court of the Federal Court to decide which judge – Spender or Emmett – was right.

The Australian, 24/8/2007, p. 37

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