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Haneef case shaping future of Australian migration law

  • 22 August 2007

"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." Jeffrey Spender, Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at paragraph 68. On 21 August, Justice Spender of the Federal Court held that Immigration Minister Andrews had made a legal error, known as a 'jurisdictional error', when he made his decision to cancel Dr Haneef's temporary visa on 16 July. The 74-page judgment considered cases not only from the High Court of Australia but also from the US Supreme Court. The key issue in the case was not a major legal point — "It is an embedded constitutional guarantee that persons will be dealt with according to law (19)". Even a Minister of the Crown is subject to the Rule of Law. This is well-trodden ground and not a radical proposition. The judgment does however dispose of the view that a decision of the Minster can be justified simply on security grounds, or the flawed proposition that the end justifies the means — as found in comments such as 'better to be safe than sorry'. Such logic sees the innocent hanged. Argument in the case had focused on the interpretation of the 'association test' in s501(6)(b). It provides that a person does not pass the character test if: "The person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct." The argument of the Minister was that the 'association' could be an innocent one, such as being related. It does not matter whether the person themselves was involved in any criminal conduct, or even was aware that the person they were associated with was involved in criminal conduct. The 'association' was enough. Counsel for Dr Haneef argued that this was too wide a test and would catch innocent people. They argued that a victim of domestic violence would fail the character test, because they had an association (a relationship in this example) with the perpetrator of the violence against them. Justice Spender considered the history of the relevant constitutional provisions, as well as case law, and concluded that this interpretation of