So Kevin Andrews has, as many lawyers expected, egg on his face today with Federal Court Judge Jeffrey Spender ruling less than an hour ago that Mr Andrews was wrong to cancel Gold Coast doctor Mohammed Haneef’s visa last month.
When Mr Andrews made his decision, after a Brisbane Magistrate released Dr Haneef on bail, the Chairman of the Australian Bar Association Stephen Estcourt QC summed up the views of the vast majority of the legal fraternity when he dubbed Mr Andrews’ actions “a threat to the rule of law” and nothing more “than a cynical use of power.”
Crikey! has a few juicy quotes from the decision by Justice Spender. They make Andrews look incredibly incompetent, but hey, we’d already noticed that.
Andrews instead of resigning is appealling the decision.
Justice Spender is emboldening the terrorists!
I particularly liked this bit in the judgement:
Translation: Your incompetency is impressive, until it is compared with your indecency.
Abolish the Courts, and end judicial oversight of the democratically elected Parliamentarians and their democratically approved feelings and judgements!
Read the judgment here.
It’s a massive setback for Andrews, and he is now the clear political loser in all of this.
One issue to consider when assessing Andrews’ so-called ‘incompetence’ is that this decision is essentially a reversal of previous case law. Spender J was satisfied that Andrews applied the test laid down by another Federal Court judge in 2001. According to Spender J, the 2001 decision held that: “any association, whether innocent or sinister, whether fleeting or regular, whether in the distant past or contemporary, is sufficient to enliven the discretion to cancel [the visa]“. I would have thought Andrews was entitled to believe that the Federal Court got it right the first time round.
Cheers
BBB
BBB, you are right to point out that the decision rests on this judge finding that the previous precedent on the meaning of “association” was, in fact, wrongly decided. He acknowledges that Andrews followed that precedent.
There should be no embarrassment in that for Andrews, and the Appeal Court can tell us which of the Federal Court judges is right. It is a “setback” only because the judges are effectively having a squabble amongst themselves.
No, Spender is saying that regardless of the interpretation of the legislation, Andrews has decided to present less corroborative evidence for his case to the Federal Court than he was prepared to present to the media.
Spender’s clear implication is that perhaps he may have upheld Andrews’ removal of Haneef’s visa on other grounds if Andrews had presented that evidence.
Spender then hints that this decision was driven either by incompetence or by indecency.
So it looks like a case of either Andrews got it wrong while thinking his decision was correct and should resign or is just straight out incompetent and should resign. I’d be satisfied with either outcome really as then justice would both be done and seen to be done and the case would be closed..
Crikey has published a special edition on the Haneef decision which is available to all on the web:
http://www.crikey.com.au
Katz, I have not read the case properly but I wonder whether that still ties in with the Chan case. Andrews’ decision on the evidence may have been driven by (apparently unjustified) confidence that material over and above that necessary to show a mere association would not be necessary to ‘enliven’ his discretion under the Act.
Cheers
BBB
I’ve downloaded the judgment to read; but from what has been written it looks like a comprehensive slap-down of Andrews understanding and application of the law, and approach to the Courts in terms of handling of evidence.
Kerry nettle has logged a Note on her FaceBook page calling for Andrews’ resignation. I’m sure there will be others calling for the same.
Andrews: an ex-politician by Easter.
No, I don’t have any inside mail – I just say that he’s let his side down and even if Howard is re-elected, Andrews is a shot duck. His seat is fairly safe for the Libs but you can expect a byelection there regardless.
…but of course with this government in particular ministerial accountability and responsibility is non-existent, so we can expect him to try and tough it out.
Courts can overturn the decision of the minister? Handy to know. Hopefully we can use this to retrospecitvely get rid of sheik hilaly, who should NEVER have been allowed into this country.
Until the election: of course, Jon. I’m talking about afterwards.
Yes, if they’ve been found to have acted illegally. That’s what I always thought the courts were for.
Unless, of course you think that a minister in the Howard government should be above the law.
Adrian, I’m glad you’ve finally come around. Your previous remarks on this subject: “The point is should an incompetent buffoon such as Andrews, or indeed any minister, be allowed such wide discretionary powers without any judicial oversight” were always going to be a tough to justify. Fair’s fair, though. You’ve brushed up on your legal concepts and have come up with the right answer. Good for you!
Cheers
BBB
BBB,
From a legal perspective you are correct regarding Emmett and Chan.
I was commenting on the political aspect of the case.
Spender has gone out of his way to wonder out loud why Andrews didn’t seek to argue other grounds for rescinding Haneef’s visa besides those that the Solicitor General argued before Spender.
Katz, it’s an intersting question. I suppose one possible answer is that none of those alternative grounds were contained in the Ministerial order to cancel Haneef’s visa (which presumably is a written instrument), since everyone, including the Solicitor-General, thought the Chan test was the correct one. Which brings me to another point, where are the calls for the Solicitor-General’s resignation? Didn’t Andrews rely on his advice on this subject?
Cheers
BBB
The judgement overturning the Haneef visa cancellation by Justice Spender is extraordinary. He claims not that Kevin Andrews was wrong in cancelling the visa -there were plenty of grounds to do that on the basis of UK police reports but that Andrews has applied the wrong test. After setting out the highly technical grounds for overturning the Attorney-General’s judgement – it was based on ‘innocent association’ Spender goes on to support the case for excluding Haneef from Australia because there were good grounds for believing the judgement was ‘non-innocent’:
‘Nonetheless I am of the opinion that, had the Minister applied the right test, it would have been competent for the Minister to cancel Dr Haneef’s visa.
This is because, in addition to the matters which the Solicitor-General identified as supporting the Minister’s view of the “association” of Dr Haneef with the Ahmed brothers, there was before the Minister:
(a) advice from the Metropolitan Police Services Counter Terrorism Command that Dr Haneef was a person of interest to their investigation through his association with two of the United Kingdom suspects believed to have been involved in the London incident and the Glasgow bombings; and
(b) On 14 July 2007, Dr Haneef was formally charged with intentionally providing resources to a terrorist organization consisting of persons including Sabeel Ahmed and Kafeel Ahmed, and being reckless as to whether the organization was a terrorist organization, contrary to s 102.7 of the Criminal Code.
These matters would have permitted the Minister to conclude that the association between Dr Haneef and the Ahmed brothers went beyond a purely familial, social, “innocent” relationship. On that material, it would have been open to the Minister, applying the proper construction of s 501(6)(b), to cancel Dr Haneef’s visa’.
The claims by Tigtog that the Attorney General has ‘egg on his face’ sound like nonsense. Peter Faris at Crikey.com describes the judgment not the Attorney-General as the ass in this case:
‘This decision demonstrates true legal-hairsplitting. The Judge concedes that the decision was for a proper purpose, that the existing law was applied in making the decision and that there was evidence to support a decision to revoke Haneef’s visa. This is also a case involving serious acts of international terrorism. But none of that is enough to save the Government. Spender J overturns the existing law and then rules that as the wrong test was applied, the visa was invalidly revoked.
It is rubbish like this that continues to give the law a bad name’.
I agree. What a bloody farce.
As a public servant, the Solicitor General reports to the minister.
I would imagine that the Executive (i.e., Minister Andrews) would be most interested in the quality of the advice he received.
It is up to Andrews to decide whether the Australian people are getting value for money from their senior public servants.
Well Katz, it might be because another Federal Court judge had given the minister and his advisers strong grounds to think they had enough with what they presented. Oh, but Spender says that other judge was just wrong.
Anyway, do you think Andrews personally decided how to run the court case? Do you think the government’s lawyers should all resign because one Federal Court judge disagrees with another?
Any political excitement about this case should be tempered until the appeal process has been through it.
Harry, Harry, Harry. The original charge was the product of an elaborate conspiracy between the Howard Government, the AFP and the DPP so Andrews can hardly rely on it as evidence of a relevant ‘association’ or bad character.
Cheers
BBB
Harry,
How in heaven’s name can a govt formulate laws, and then fail to competently enforce them once they have nominated a “crisis of national security”?
If this govt were a business, they’d have gone broke years ago.
It’s be funny if it wasn’t etc etc.
Harry, you should ask your mate John Howard to appoint you a judge of the federal court. Since you are innocent of any training in the law, you would be free to apply your policy preferences (read: prejudices) to cases like Haneef’s, without worrying about whether you are correct as a matter of, well, the law.
No wonder Andews was suspicious. Haneef owned a pair of sneakers…for sneaking.
Taking a bet here on a Kevin has to shorter odds , but on the open market the odds for bogons like me there is money to be made.
It’s not the law that got a bad name with the series of bumbling and bungling by the Minister responsible for a large share of australia’s National security. But it sure looks like the so called credentials of the Howard Government on National Security are in tatters, as it is clear Andrews could not run a chook raffle successfully.
Andrews has no regrets, and repeats that he acted in the interests of national security. And Howard won’t make any comment until the appeals process has run its course. Which of course won’t be until after the election. Problem is, if Howard wins, he’ll no longer care about the Haneef case, and if he loses, he’ll care even less.
I have a feeling that the judge decided this case on the basis of his personal view of the way it was handled, and good on him. I also have a feeling that the Government’s continuing attacks on the judiciary influenced him. And good on him for that too. No doubt many of his colleagues feel likewise.
snorky
“I have a feeling that the judge decided this case on the basis of his personal view of the way it was handled, and good on him.”
I realise this is probably just a throwaway line but seriously, would you like the law to be decided on wether a judge was pissed off on the particular day/case? The decision was a technicly correct one, the government didnt present its case in the appropiate manner. However it does come fairly close to judicial “mischef making” in which the law is supposed to remedy problems using past rulings. Not invent new rulings unless the previous one was deficent in some way, was overturned, or didnt exist.
The immigration department has been under constant legal seige for a decade now, the laws and rulings have covered pretty well every twist, turn and combination imaginable. For a new finding to crop up now is frankly a little unlikely.
One gets the feeling we have been here before.
Two points. The grounds on which Haneef could potentially have suffered the cancellation of his visa according to Justice Spender are no longer valid – that is, he is presumably no longer a person of interest to the UK investigation and the Australian charge against him has been dropped.
Secondly, Spender, in disagreeing with the earlier judgment of Emmett in the Chan case, appears to be arguing for an interpretation of ‘association’ that requires some degree of complicity in the wrongdoing with which the person in question is associated. This is sensible in order to avoid the ‘battered wife’ scenario to which Spender refers. It should not be enough that the association is a mere association that, ultimately, comes down to the whim of a minister who or may not be driven by sheer political expedience rather than a genuine commitment to the national interest.
A good judgment that I hope will be upheld by the Full Bench of the Federal Court. Good luck to Dr Haneef, and shame on Kevin Andrews.
check out the Andrews must resignweb site
Perhaps, while Howard is so keen on plebescites in Qld, that we could have a referendum on Haneef.
Great, and while we are at it, a referendum on sending Al-Hilaly b back to where he came from! hehehehehe!
Is it not the duty of the court to consider the intention of the lawmakers when applying the law? It would be fairly safe to assume that the legislature was not pursuing battered wives when these laws were enacted, but instead the intention was to maintain reasonable control over who is granted the privilege of a visa. It should therefore be proper that this decision is appealed in order to preserve the integrity of those particular laws.
Or a General Election to clear the deadwood out of a tired and hopeless Federal Government.
Listening to Android on PM this evening, his blank refusal to acknowledge reality and constant repitition of inanities, was embarassing (to think that he might be a similar species).
If he were in the military he’d be open to a charge of “dumb insolence”, the stubborn refusal to act as if sentient.
On tuther hand, he probably has a cast iron defence there…
Nobody really believes that he acted of his own volition surely? He wouldn’t opt for tea or coffee without approval from his Master’s Voice.
That’s the most egregious form of judicial activisim.
Spender has been a hard-line black letter law man in this case.
Why aren’t the RWDB Keyboard Kommandos ecstatic about the contribiutions to jurisprudence of a non-activist judge?
(Actually, I know the answer to my question. It’s because RWDB’s care about nothing except their own blind partisanship.)
Steve, you leave out the part of my quote about the plebescite on Sheik Al-Hilaly.
Why would that be? hehehehehehe…..
Gee, let me guess. Coz you know very well what the Australian public would vote for regards Hilaly, and you are not exactly in line with Australian people are you? Hehehehe…
One thing I do know about the latest Rudd controversy is that for the foreseeable future, “Scores Gentleman’s Club” is not going to have to worry about publicity for the venue.
The main problem now, after getting worldwide coverage, is how to fit in all the people who are going to want to visit to check the place out.
Other “so called” Gentleman’s Clubs including one only 1009 metres from an office building used by both Mr Rudd & Mr Howard are also getting into the act. Check this out!
http://www.news.com.au/heraldsun/story/0,21985,22283322-5005961,00.html
“Not going to have to worry about publicity”?
“Worldwide coverage”?
This is a tit-fahaart australian political issue.
New York gives a sheet about this? Bwahahahahaha
Steve, you call news items in over 400 international news outlets, a tin-pot Aussie parochial issue.
You need to get out of your Bar a bit more.
Scorpio, next time I am in a bar will be probably be the first, please exaplain why you think I am in one?
Please explain why you believe cosmpopolitian New Yorkers will consider 400 “international” new outlets reporting something cause for them to visit a strip club?
In fact, please explain why you feel New Yorkers have any distinction between “international” and “local”?
It’s called “The Big Apple”, promoted as an international city, centre of world trade organisations and the home of the UN.
Probably gety more international visitors annually than the total population of Australia.
Better get back to the bar. You don’t seem to use your computer for anything else except spewing crap out against other posters on blog sites.
Steve, currently 419 news items on this on Google News. And growing.
Currently on international blog sited, tens of thousands of comments. Over 1800 on one British blog site alone.
New Zealand Herald, New Zealand -
Independent, UK
Times of India, India
Telegraph.co.uk, United Kingdom -
Reuters India, India
Taipei Times, Taiwan
Scotsman, United Kingdom -
Times Online, UK
That kleaves out the Aussie ones and there another 12 pages or 367 more news stories. Good enough for you. Loser!
Scorpio, the only place you will see a loser is in the mirror.
So Kevin Christian Choir Boy Rudd’s drunken “I don’t remember” act in New York is reported in heaps of antipodean rags.
And that impacts upon New Yorkers how?
You seem to be quite an exponent at diversionary tactics like your hero Howard.
Did you see him on 7.30 report tonight? What a pitiful, lame, effort he put up. Kerrie had him blustering and swallowing profusely, didn’t he.
The old codger is well and truly gone and I will take great pleasure in rubbing your miserable nose in it come election night. And it’ goodnight from me.
Am stunned that people here would talk of the “intentions of lawmakers” here, as if judges would be honour bound to uphold malicious intentions and attempts to scapegoat the innocent through perversion of the intent and spirit of the law.
Spender has unintentionally, perhaps, been ironic in citing a technicality, when Andrews himself has wasted so much time and money pursuing technicalities of his own, to employ the law in denying innocent people a fair go.
I say “people” in recollection also of the all the technicalities the minister employed to withold protection from plain working people resultantly denied their rights, during his time
imposing the un-Christian “W………s”.
I think Spender came to a decision far more in accordance with the the spirit of the law than the grossly arrogant and miserable bible bashing bastard who persecuted Haneef. Andrews and his Dickensian flint-hearted cheer squad can moan all they like, but better if Andrews (finally)accepted ( yet another) umpires’ decision and got down to doing something useful, for once.
Here’s the great Australian Labor Party taking a strong stand as usual:
http://www.theaustralian.news.com.au/story/0,25197,22286160-2702,00.html
Have had Burke’s weak and spiritless effort fulminating in the back of my mind since dinner. Was actually just thinking about a final post on the subject when I find the Gracious One has beaten me to it.
Will finish with mention of report in “Age”; entitled “The Day a Judge Overruled a Minister” by Cosima Marriner et al, mentioning the fierce ridicule directed toward Andrews from sections of the legal profession. Where were you, Tony? When they are THIS wrong, you GO for them, like a Labor bloke. You don’t just stand there almost whimpering, like a flippin’ handbag or bloody great girl’s blouse!!
Katz,
Spender J applied neither an original intent interpretation of the law nor a semantic (black letter) one—as you suggest. He made this decision based on a technicality.
As for him being a non-activist judge, that view is debatable given the judge’s well publicised earlier remarks. By making this decision on technical grounds, he has avoided giving further evidence to those who would accuse him of bias or pre-judgement.
Katz is being a little mischievous I think. As he well knows, the entire point of statutory construction is to figure out the intentions of the legislature. Leaving aside other aspects of the judgment, it’s not as if Spender J’s process of interpretation in relation to the word ‘association’ was innovative.
Cheers
BBB
hc, I agree. What a bloody farce.
The Migration Act was used to refuse the Visa, the first court case did that, it was used by the minister to continue detainment through an immigration centre. It was the executive overturing the judicial’s initial decision which said detainment could not continue any longer with the evidence tabled.
The Spender decision has nothing to do with that.
The Migration Act was NOT used to refuse the Visa
Mischievousness is a capacious concept. But I deny all imputations.
BBB is being cute when s/he says “the entire point of statutory construction is to figure out the intentions of the legislature”.
Statutory construction signifies in the first instance the intentions of the government, or at least the minister responsible for passage of the legislation.
The Parliament may or may not then successfully amend that legislation.
The legislation, as amended, is then passed into law by means of vice-regal assent.
Statutory interpretation is a very different process from statutory construction. Judges are in no way involved in the process of statutory construction. Indeed, it would be a breach of the separation of powers were judges to have any formal role in that process.
Statutory interpretation is in itself a very complex issue. The most traditionalist judges (those who are the culture heroes of RWDBs) interpret the laws narrowly, according to what the laws say, not what may or may not have been in the minds of legislators when these laws were being constructed.
BBB therefore attempts to smuggle an argument under the false colours of a conflation of the concepts of construction and interpretation.
For Tony of South Yarra: “technicalities” are the meat and potatoes of Black Letter Law judges.
Katz,
The term ‘statutory construction’ in this context is the same as ‘statutory interpretation’. This is why the Encyclopaedic Australian Legal Dictionary, a fairly standard source, says: “[Statutory construction is] [t]he process by which meaning and content are given, by the courts, to statutes and the words and phrases contained in them. This process is aided by various rules and presumptions such as the literal, mischief and purpose rules and recourse to extrinsic materials relating to the particular statute in question…Also known as ‘statutory interpretation’.”
I’m afraid your entire comment is utter nonsense.
Cheers
BBB
Not nonsense, just mischievousness.
I’m glad you ferreted this out BBB.
It is clear that Spender, J. was being quite literal in his interpretation of the statute in question.
In other words, Spender, J. was a black letter judge.
QED.
A Black Letter Minister waiting to let due process overcome Andrews’ bumblings.
The Brisbane Times has a copy of the 2nd Haneef interview released by lawyers this morning. See top left corner.
Fair enough, Katz. It is often difficult to separate mischievousness from ignorance.
Cheers
BBB
Hedley Thomas wrote a great article this morning on the bungling Andrews.
Now the AFP are whining about the 2nd interview being released. If Andrews had been a competent minister the whole thing would be over and dusted by now.