The publication of the Full Federal Court’s decision in the case of Mohamed Haneef last week might well have been a relief to civil libertarians but they nonetheless reveal how weak the separation of powers are in Australia and how vulnerable individuals are in the face of executive power. Haneef came to Australia from India in 2006 to a job as a doctor at Southport Hospital. In June 2007 two of his second cousins were arrested in the Britain following attempted terrorist bombings in London and Glasgow. Haneef was charged with helping terrorists by providing a SIM card to them and taken into custody.
Politically, it was great stuff for the Government. Its campaign of fear suggesting only the Coalition could be trusted with national security was bolstered, at least temporarily.
Selective leaking ensured the public would think a major terrorist had been caught on Australian soil.
Then it transpired that between them the British and Australian police had been too enthusiastic with the facts. The SIM card was found nowhere near the bomb scenes. And there was an innocent explanation for it. Haneef was heading overseas, so, of course, he might give the card with some unexpired credit on it to a relative.
When the weakness of the case was seen by the magistrate she gave him bail. Nonetheless, Immigration Minister Kevin Andrews cancelled his visa on the ground that Dr Haneef did not pass the “character test”, rendering him liable to be put in immigration detention.
You can fail the character test in the Immigration Act if you 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 cancellation was challenged successfully in the Federal Court and the Government’s appeal was unsuccessful.
The ground of the challenge upheld on appeal was that Parliament must have meant that “association” meant something more than the ordinary social intercourse one might have with a blood relative.
This is classic separation-of-powers territory. Parliament makes laws with general application. The executive administers those laws, applying them in particular cases. The judiciary adjudicates on disputes involving the interpretation and application of the law.
In this instance, the judiciary said the executive had misinterpreted and misapplied the law.
Good to see the executive, in the guise of the Minister for Immigration is subject to the law.
The Full Federal Court said that in matters where individual rights and liberties are concerned, a narrow interpretation of the words Parliament laid down is to be preferred over a broader one. The “association” had to indicate some sort of support for the people suspected of criminal conduct and must have some bearing on Haneef’s character.
But note that Parliament can easily change the Immigration Act. It could change the definition of “association” to include mere blood relationship. It could, indeed, give the Minister the unfettered power to deport people.
Further, the executive in Australia is made up of people from the political party that has the majority in the House of Representatives which has a large amount of control over the legislative process, especially when you consider that the Senate allows more than 90 per cent of the legislation passed by the House of Representatives through.
Worse, when it comes to matters of civil liberties the two major parties often see eye to eye: so often, each prefers executive power over individual liberty. One or other of the major parties always forms the executive, so they have sympathy for each other when it comes to questions of favouring executive power.
Sure, Labor wrings its hands in Opposition, but when it came to the crunch it supported nearly all of the then Coalition Government’s terrorism and immigration legislation that increased the powers of Minister and the police over individuals.
In Government, it is not much more mindful of individual liberties than the Coalition. We are seeing that now. The new Government is to appeal to the High Court in the Haneef case, arguing for the broader definition of “association”, that is, arguing in favour of greater ministerial power for future cases. In the meantime, it can give lip service to civil liberties by using its executive power to allow Haneef, since acquitted over the SIM card, to return to Australia if he wants.
If the new Government loses in the High Court, it would not be surprising if it seeks to legislate to give the Minister more power and discretion. That has been the pattern in the past – more power to the Minister, less power to the courts and fewer rights for individuals. No doubt the Coalition will go along with it – though it would be an opportunity for the few remaining small l liberals in the Liberal Party to give some reality to their party’s name, which has been an utter misnomer for 11 years.
It is the same with the case of David Hicks. Despite all the hand wringing while in Opposition, the new Government is doing nothing to prevent a control order being imposed when Hicks is freed from jail. Nor is it doing anything to provide for greater judicial supervision of control orders generally. Nor is it doing anything about other excessive police powers — detention without trial, detention and questioning of witnesses and so on. The exercise of these powers is to remain in the hands of the executive.
A further example of the new Government’s attitude to executive power can be seen in its insistence on vetting media releases from statutory authorities.
Given the accretion of executive power and the way the Australian legislature walks hand in had with the executive for so much of the time, the need for a bill of rights gets ever stronger.
The almost unfettered power of the Parliament to grant almost unfettered power to Ministers is a worry whichever party is in power.
When you look at the increases in executive power in the wake of the “war” on terror, it gives new meaning to the saying, “the price of liberty is eternal vigilance”. We need to watch our own governments.