In a previous article on Judicial Doctrines I discussed the doctrine of Judicial Review. This is where the court can decide not to enforce a law that is unconstitutional. In the Haneef vs Minister for Immigration the law wasn't unconstitutional - mainly because there is no constitutional tests such as a Bill of Rights in the Australian Constitution. However, the Judge felt obliged to justify the doctrine of Judicial Review in the judgement. By doing so Spender is nullifying exception or emergency governance in the area of national security and immigration.
From the judgement:
30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government. 31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security. 32 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 ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157, set out at [23], makes plain.Spender is stating that national security concerns cannot suspend the constitutional order defined by separation of powers. Spender is repudiating a state of exception or emergency governance.
