The Mohammed Haneef Case Security v Individual Rights PDF

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The Mohammed Haneef Case Security v Individual Rights...

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The Mohammed Haneef Case: Security vs Individual Rights (Part one) One of the key functions of government is to protect its citizens from external threat and to ensure internal security. Governments and citizens are particularly sensitive to the threat of terrorism. Civilians are the most common terrorist target, and our fear of terrorism is given wide coverage in the media.

Since September 11, the Iraq war, the Bali bombings, and the London transport bombings, the Australian government has been especially alert to threats of terrorism. Australia has passed legislation which allows Government agencies extraordinary powers to deal with the terrorist threat: eg. Anti-Terrorism Act 2005 (Cth). In his second reading speech Daryl Williams, the then Attorney-General, said: “It must be remembered that these warrants are a measure of last resort. It is anticipated that they will be used rarely and only in extreme circumstances.” (Quoted in W. Aly p. 111 Unit Reader)

Andrew Lynch (Director of the Terrorism and Law Project UNSW, interviewed on the Law Report 24 July 2007, p. 119 Unit Reader) “in investigating terrorism crimes, the police are having to deal with a fairly new sort of paradigm, and these laws which are having to be applied are all new laws … I think it’s fine to introduce a lot of tough laws, but how they will actually work when they’re in the hands of the police, is only something you can assess once you’ve got actual cases.” The case of Dr Haneef

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“Dr Haneef was not a permanent resident … but his visa gave him valuable rights. They included the right, for the term of his visa, to live here, to be at liberty here, to be with his wife here, and to work here.” (Full Federal Court in Haneef’s case)

Background - Dr Haneef’s detention After the unsuccessful car bombing of the Glasgow Airport in 2007, Mohammed Haneef, an Indian Doctor working in Australia and a second cousin of one of the alleged Glasgow bombers, was arrested and detained on suspicion of aiding an act of terrorism. Haneef came to the attention of Australian police because when he had left the UK he had given his SIM card to a cousin whom British police had charged with involvement in the bombing. Within 48 hours of the Glasgow bombing Haneef was booked to travel on a one-way flight to Bangalore to see his wife and new baby daughter. Haneef had given his employer only half a days notice but been allowed 7 days leave. He has always maintained he decided he needed to go home because his new born daughter had become ill. On the basis of the largely circumstantial case against him, Haneef was held in Police custody for 13 days from the 2-16 July 2007. Haneef was questioned only twice while in custody.

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Media attention Dr Haneef’s plight became the subject of intense media scrutiny and public concern (Cameron Stewart, p. 128 Unit Reader). The Immigration Minister and Federal Police made a number of press releases which politicised Dr Haneef’s plight. Some commentators argue the press releases were a deliberate attempt to vilify Dr Haneef (Unit reader 126-30). Stephen Keim QC released a transcript of Dr Haneef’s police interview to the press in order to counter what he argued was the AFP’s selective release of information to the press. The release of the transcript revealed discrepancies in the prosecution case against Dr Haneef and led to collapse of the charges against him (The Australian 2/5/2008: 29-30).

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Released on Bail A Brisbane magistrate released Haneef on bail the 16 July. The magistrate ruled that the case against Haneef was weak, that he did not present a ‘flight’ risk or a threat to the community.

But Dr Haneef was not free – visa cancelled After Haneef’s successful bail application the Minister for immigration cancelled Dr Haneef’s visa on the ground that he did not pass the Migration Act s.501(3) ‘character test’ (discussed below). Haneef’s lawyer found out from the media rather than the Minister’s office that Haneef’s visa had been cancelled. The Minister held a press conference to announce the visa cancellation.

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The Minister’s interpretation of the character test The Minister for Immigration, Kevin Andrews, applied the character test as it had previously been interpreted and applied. The previous interpretation barely placed any conditions on the minister’s exercise of discretion; there was no requirement to consider the nature of the association with others suspected of criminal activity. In his statement of reasons the Minister indicated the following matters supported his reasonable suspicion of the relevant association: (i) Dr Sabeel Ahmed and Dr Kafeel Ahmed are suspected of involvement in the London incident and the Glasgow bombings. (ii) Dr Haneef has advised the AFP that he is the second cousin of the Ahmeds. (iii) Since leaving the United Kingdom Dr Haneef and Dr Sabeel Ahmed have been in correspondence via on-line chat rooms. The most recent correspondence, on 26 June 2007, concerned the birth of Dr Haneef’s daughter.

Character test (see your handout) (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) 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; or (c) having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or

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(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test.

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Criminal Justice Stay Certificate - Dr Haneef subject to immigration detention On 17 July the Attorney-General issued a ‘Criminal Justice Stay Certificate’ under s.147 of the Migration Act which meant that Haneef was to be held in Australia pending the trial of criminal charges against him (an indeterminate period of time).

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QUESTIONS 

Does Dr Haneef pass the ‘character test’ ? (see your handout)

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Before issuing a ‘Criminal Justice Stay Certificate’ what sort of information do you think the Attorney General would need?

The Mohammed Haneef Case: Security vs Individual Rights (Part Two) Judicial Review of the Minister’s decision to cancel visa – interpretation of character test: Haneef v Minister for Immigration and Citizenship [2007] 242 ALR 290 The Ministerial decision cancelling Dr Haneef’s visa and right to work was successfully reviewed in the Federal Court. On the 21 July Spender J of the Federal Court ruled the Minister’s decision to cancel Dr Haneef’s visa was invalid. The Court declared Haneef ‘a lawful non-citizen’. The Federal Court considered the legislation and overruled the previous interpretation of the test. The Court held that when applying the test the Minister was required to consider the nature of the ‘association’.

The Court found the Minister had failed to consider the nature of the association and how it might mean Haneef failed the test.

Affirming Spender J’s decision on appeal the Full Federal Court - Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 (21 December 2007) “None of these elements, individually or together, is capable of supporting a reasonable suspicion that Dr Haneef knew of, was sympathetic to, supported, or was involved in any way in criminal conduct undertaken by the Ahmeds.

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The Minister said nothing in his Statement of Reasons to indicate that he had turned his mind to those questions.” Judicial review - Minister acted for an improper purpose when cancelling Dr Haneef’s visa. This ground of judicial review did not succeed because there was not enough evidence available upon which Spender J could assess the Minister’s purpose. The Immigration Minister did not provide the Federal Court with evidence of all the information the Minister relied upon the cancel Haneef’s visa, despite the fact that the courts have a range of procedures for maintaining the confidentiality of sensitive evidence. The Immigration Minister also declined to make himself available to give evidence or be cross examined at the judicial review hearing. Spender J commented: “The Minister is, in a sense presenting one case in the public arena, a case of the accuracy of which cannot be challenged in any meaningful way, and a smaller and not the same case in the Court, in a way which does not permit explanation or challenge by way of cross examination.” (para 327 Haneef v Minister for Immigration and Citizenship [2007] FCA 1273) What happened after the successful judicial review? Haneef remained in custody until 27 July 2007 when the criminal charges against him were dismissed for lack of evidence (his lawyers did not want him transferred to immigration detention where he would have fewer right and they would not be able to consult with him as readily).

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Dr Haneef was taken briefly into immigration detention after the criminal charges were dismissed. On the 28 July when the Criminal Stay certificate was cancelled Dr Haneef voluntarily left the country. On 5 September the Minister appealed the decision of Spender J to the Full Federal Court. On the 21 December the Full Federal Court upheld Spender J’s ruling.

Another attempt to make government accountable - The Clarke Inquiry Dr Haneef’s case and the conduct of government was the subject of an independent judicial inquiry ‘The Clarke Inquiry’. The Clarke inquiry found the Minister knew there was advice from ASIO that Dr Haneef had no part in the Glasgow bombing, but made no effort to square that advice with the contrary information provided to him by the Australian Federal Police (AFP). The Clarke Inquiry found the Chief Australian Federal Police Commanding Officer in the investigation, Ramzi Jabbour ‘lost objectivity’ in the course of the investigation. Director of Public Prosecutions (DPP) lawyer Clive Porritt provided advice to the AFP on the sufficiency of evidence supporting arrest – but the AFP treated his advice as supporting the laying of criminal charges. When the AFP sought clarification of the limits of Porritt’s advice he provided no clarification.

At the bail hearing the Porritt presented incorrect information about the use of Haneef’s SIM card in the bombing. This information was not corrected by the AFP or the DPP until after the British police clarified the inaccuracy in an interview with ABC correspondent Raphael Epstein, who reported on the matter on the ABC radio program ‘AM’ (Cameron Stewart, p.128 Unit Reader; Stephen Keim QC interviewed on 4 Corners “The Trials of Dr Mohammed Haneef” ).

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The Clarke Inquiry found Porritt failed to assess the available evidence properly, and that Jabbour had presented the evidence in a form that failed to meet standards which would guarantee objectivity. The Clarke Inquiry also found that the DPP officer Clive Porritt was operating under a ‘subconscious desire to provide positive reassurance’ to a senior investigating officer, (the same one who had lost his objectivity).

The Clarke inquiry did not find there had been improper political interference in the Haneef investigation.

Because there was none, or because it was not possible to fully investigate the role of the executive? There was no, or only limited, cooperation by senior ministers (AG and Minister for Immigration) or the PM’s office with the Inquiry. Clarke found it difficult to get access to critical documents (Cabinet and the National Security Committee). It was only when Clarke announced he would not make transcripts of interviews and related evidential docs public that he received any measure of cooperation.

The significance of what happened to Dr Haneef Andrew Lynch in an article analysing the Clarke Inquiry concludes: ‘The extraordinary steps taken to deprive Dr Haneef of his liberty did not …, raise the scale of our security. Instead there is good reason to think that it harmed effective security efforts which rely on public confidence and social inclusion.’ (‘Learning from Haneef’ Inside Story, 5/2/2009 – HYPERLINK "http://inside.org.au/learning-fromhaneef accessed 3/05/2010" http://inside.org.au/learning-from-haneef accessed 3/05/2010)

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Waleed Aly (Monash Uni pp. 111-2 Unit Reader) provides egs of: “expanded police and intelligence powers being used coercively to intimidate people into cooperating with authorities when they have no legal obligation to do so.”

Julian Burnside QC, (interviewed on the Law Report 24 July 2007, Unit Reader p. 123) “of course government has an obligation to protect the citizens of the country, but they also have an obligation to protect our democratic system, and the rule of law lies at the heart of that. And frankly, the idea that a person can be jailed for a couple of years on secret evidence, with the government saying, well trust us, is no substitute for real democracy.”

“under the anti-terror provisions introduced progressively over the last few years, they [prosecutors, police] now regularly argue that evidence should be withheld – not only from the public, but in some instances from the court, and in many instances from the litigant who is most vitally affected by the evidence.”

An email to commanders of the Australian Federal Police from David Craig, a counter-terrorism coordinator, leaked to The Australian, revealed that there was an official plan to thwart the operation of the criminal justice system by holding Dr Haneef in immigration detention: “Contingencies for containing Mr Haneef and detaining him under the Migration Act, if the case is granted bail on Monday, are in place as per arrangements today” (The Australian “Secret plan exposed” 2/11/2007).

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Was there a breach of the rule of law in Haneef’s case? Andrew Lynch (Director of the Terrorism and Law Project UNSW, interviewed on the Law Report 24 July 2007) says: “The problem with the laws, as I see it, is that they are excessively broad, and that actually gives very little guidance to police as to when they should be applied and when they shouldn’t. …

Although at every stage the authorities and various ministers have been able to say that what they’re doing is entirely in accordance with Australian law; and that’s perfectly true, that to my mind is not enough. A rule of law state is one in which vast executive discretion is not simply handed by the Parliament to officers of the Executive. The idea of the rule of law is that everybody is constrained by the law, including raw executive power, it’s not simply enshrined in legislation. And so that would impose some checks or limits upon what the Executive can do. (Unit Reader pp. 120-1) Julian Burnside QC, (interviewed on the Law Report 24 July 2007, Unit Reader p. 122) says: “to the extent that ministers have wide discretions that can’t be reviewed or corrected in courts, than the rule of law has been eroded.”

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Full Federal Court in Haneef’s case “It is an important principle that Acts should be construed, … so as not to encroach upon common law rights and freedoms.” (para 107)

Vs Phillip Ruddock (former Minister for Immigration & Attorney General) The executive have challenged this principle, Ruddock has argued that an emphasis on individual rights might detract from the relative influence and importance of other values such as efficiency or national security (‘Refugee Claims and Australian Migration Law: A Ministerial Perspective’ (2000) 23(3) UNSWLJ 1: 7-8). Vs The Full Federal Court in Haneef’s case Rejected this type of approach which favoured managing risk over the recognition of fundamental rights: “On that view Parliament may be taken to have accepted as collateral damage the risk that the legislation would expose a wide range of innocent people to the risk of cancellation of their visas, detention in immigration facilities and removal from Australia.”

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