With the sort of prickliness the judiciary usually reserve for those outsiders who dare comment on their work, the Federal Court Judge, Jeffrey Spender, in his decision to reinstate Haneef’s visa noted that:

There has been erroneous and ill-informed comment that the present proceedings are “a bout between a section of the judiciary and the executive.”

This appears to be a rough quote from an article by Gerard Henderson two weeks ago, which expressed a similar view to that by Paul Kelly around the same time that the Haneef affair is a really a fight between the government and the legal profession. For reasons set out in a post a week prior to these two articles, this blog agrees.

Indeed after ticking off everyone else for saying such a thing, Judge Spender himself spends a few pages explaining why such a conflict is necessary and desirable. He approvingly quotes the view that there are “countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live” (The implication that the judiciary can offer resistance to unfair governments sounds very noble until it is remembered that they are usually left-of-centre governments, such as the one that experienced judicial meddling in this country 32 years ago).

To read much of the Judge’s decision and the media comment about it, you could get the impression that this is all about the detention of Haneef and the excessive use of anti-terrorism powers. But it is not. The issue is actually about the use of powers that have been around for fifty years, since the golden years of the White Australia policy, to stop people coming into the country. The sweeping Ministerial discretion the 1958 Migration Act gives to do this (and its subsequent strengthening under Keating) is something that has until now caused as little problem for the judiciary as politicians generally. Andrews cancels about half a dozen visas a week. In fact so confident was the Minister that he had those powers that his case rested on the precedent of a 2001 judicial decision to uphold the blocking of a woman’s visa on no more grounds than her husband had a criminal conviction. Unfortunately for Andrews, something that was acceptable six years ago has suddenly become a problem for the judiciary.

What made it so was that Andrews used those powers to counter the decision of a Brisbane Magistrate to grant Haneef bail on the basis that the evidence provided by the UK was weak enough to be called ‘exceptional circumstances’. Taking away Haneef’s visa had no immediate impact (as the AFP had already taken his passport) but was a political response to the political damage done by the Magistrate’s decision. It was this decision against one of their own, not Haneef’s detention that has been the focus of judicial anger. It is why the attack has been on Andrews, not on Ruddock’s anti-terrorism laws.

It was not the only political injury the legal profession inflicted on the government; it approved the highly unusual leaking of the police transcript by Haneef’s lawyer. Even Judge Spender did some damage with his earlier comment to the government counsel that “Unfortunately, I would fail the character test on your statements, because I have been associated with persons suspected of criminal conduct.” (In another example of how the Judge had an eye to the media in yesterday’s judgement he defended his politically loaded comment as ‘Socratic’ questioning).

Civil libertarians who want to get excited about yesterday’s ruling should remember a couple of things. Firstly, it does not touch the anti-terrorism powers, which in this blog’s view are disproportionate to the threat (as indicated by the fact that this is the first time in six years they have been used and that was at the request of another government). Secondly, although really about the Migration Act, this case has been so submerged into an anti-government campaign that it is hard to see how it will change the use of powers that are a bedrock of how this country has unfortunately conducted itself since Federation.

The main impact will be political. This issue is critical as it goes to the core of how the government exercises power, not only domestically, but more importantly to fulfil its international obligations. Howard has no choice but to force this issue by dragging it on to the highest court in the land to get another reaffirmation of powers that the courts may uphold in letter, but clearly not in spirit.

To this blog, such issues that go to the heart of how power is exercised by the government here and overseas, is really what drives Australian politics, not interest rates or strip club visits. How it works through to the electorate in the closing months of the campaign will vary. But maybe the best way to get an idea of this is to watch Howard on The 7.30 Report last night wearily trying to sell his meaningless ‘aspirational nationalism’, but now unable to talk about stopping a man who his government believes is a suspected terrorist from entering the country – something that just a few months ago, would have been his favourite topic of conversation.

Posted by The Piping Shrike on Wednesday, 22 August 2007.

Filed under Key posts, The Australian state

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