In addition to providing Dr Mohamed Haneef with a significant victory over the Australian government, Justice Jeffrey Spender’s judgment is a powerful rebuke to those politicians and conservative commentators who argue that our courts ought to defer to government when it comes to matters involving national security. And we must guard against governments who believe in guilt by association, says Justice Spendder.

There is “no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security,” Justice Spender writes.

“True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government” to make sure the process is legal, he says.

In other words, when it comes to anti-terror laws or border protection laws – two favourite legislative areas of activity of the Howard government and the ALP opposition – abolishing the right to challenge decisions of the government in the courts is simply unfair.

This is a decision which fortunately knocks on the head the submissions from the Commonwealth’s lawyers to Justice Spender that you can be thrown out of Australia on the basis of “guilt by association”. The Commonwealth’s lead lawyer, David Bennett QC told the Court that:

…if you are a person who is, using the loose expression, a friend or a good mate of, or a person who associates in that sort of way with, people who fall into the relevant category, then the Minister is entitled to say, ‘My discretion is enlivened’. …

In other words, on this view of the world, it is enough that a visa holder is a friend of a terror suspect to make them liable to have their visa cancelled.

But Justice Spender was having none of this patently unfair view of the world. As he points out, if the Commonwealth’s view were right then “a woman who has suffered domestic violence by her partner” could have her visa cancelled because she “has an association with a person reasonably suspected of criminal activity”. 

And just to illustrate how absurd the Commonwealth – and in this case Kevin Andrews’ — arguments in this case were, Justice Spender cleverly observes:

…if the discretion to cancel a visa holder’s visa were to be enlivened on the basis of a perfectly innocent association with a person who had engaged in criminal activity, the position is not much different from the exercise of a power conditioned on the circumstance that a person had red hair.

Today’s decision represents a welcome victory for the rule of law in an era where it has become a scarce commodity.

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Peter Fray

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Peter Fray
Editor-in-chief of Crikey