Minister Andrews stands on a shrinking iceberg

Today's judgment of the Federal Court places Kevin Andrews on a shrinking iceberg of his own making. The Court's Justice Spender has found not only that Andrews applied the wrong test to cancel Haneef's visa, but that his interpretation of 'association' was dangerously wide, and would, for purposes of s.501(6)b of the Migration Act, cause a battered wife to fail the character test by her mere association with a wife-beater.

To pursue the wide definition of 'association', the Government's counsel was forced into the ludicrous position of claiming that the 'character test' in effect had nothing to do with character: in essence, that the required association would be satisfied by factors extrinsic to the person in question rather than intrinsic to that character. Justice Spender rejected this position, stating:

[At 205] I simply do not accept that the words "the character test" are not words to be read as having a meaning; they are not "just a convenient definition".

He went on to state:

[At 208] The submission that the words "the character test" are not words to be read as having a meaning, starkly reveals the distance between the scope and object of s 501(3) of the Migration Act and the construction that the Minister wishes to make of s 501(6)(b).

That is to say, Andrews interpretation, and counsel's argument supporting it, betray the yawning gulf between the rationale of the legislation and the minister's exploitation of it.

This was a victory for commonsense that I hope will be upheld by the Full Bench of the Federal Court. To be tarnished by association, there should need to be some degree of complicity in the wrongdoing with which the person concerned is associated - whether that be knowledge or direct involvement. Insinuation by a politically motivated minister is not enough, Kevin Andrews, and you should resign.

The full judgment is available from the AUSTLII website.