Sunday, July 22, 2007

Playing Politics with Other Peoples Lives

It is unusual that I comment on anything outside medicine. But the treatment of Dr Haneef has been so abominable, and the actions of the Federal Government so despicable, that I feel I would be standing by allowing evil to occur if I were to keep quiet.

I am no expert in terrorist activities, national intelligence, legal matters, or politics. I am not privy to any confidential or classified material, and I have no direct acquaintance with any of the involved parties that I know about. But I am a taxpayer, and vote-holder, and (I hope) intelligent enough to see when we as a society are having the wool pulled over our eyes.

On July 4, Federal Police Commissioner Mick Keelty was asked:
CHRIS UHLMANN: So do you think you'll be in a position to charge him, release him or extradite him to the UK any time soon?

MICK KEELTY: By the end of the week I think is the time frame that we would give.

And of course one of the things I wanted to emphasise is the presumption of innocence here. I know there was a lot of sensational reporting yesterday of the case. And I understand that. It's the first one of its kind and the first time that we've resorted to the new legislation in this country.

Understanding all of that, I think now is the time to calm down and settle back and allow us to go… sift through the evidence or the information that's been obtained through the search warrants, and to allow the joint terrorism team, the Queensland Police and the AFP team that's been working on this since, basically since the bombings occurred in London, to go through what evidence might be available so we can make a decision.

Note the cautious response, the reinforcement of the concept of the presumption of innocence, and the estimate of a week's time to determine the outcome of the case. At this stage, it seemed reasonable to allow time for things to pan out.

Several days later on July 7, Attorney-General Philip Ruddock reinforced the presumption of innocence, in his usual, round-about way:
PHILIP RUDDOCK: Well, I am concerned for any individual when police question you that people might draw any conclusion other than that the police have questioned the individual in relation to inquiries that they're making. And even if the matters were taken further and the police had serious and continuing concerns, until such time as the person is charged, all you know is that they have formed a view that there is a case to answer. And the further point is that even if charges are brought in Australia, people are presumed innocent until proven guilty. And those propositions apply here in exactly the same way as they do every other investigation.

The interview continued:
ELIZABETH JACKSON: Is there anything else you can tell us at this point about the Queensland-based doctor, Mohamed Haneef, who was being detained I think since Monday without charge? I understand that he's being held over the weekend. Is that your understanding? Have there been any developments on that front?

PHILIP RUDDOCK: Well, the point I made, and it was mentioned I think in Chris' piece, that counter-terrorism laws were invoked. In fact, the provisions in the Crimes Act, which enable a person to be detained for questioning have been used in this particular instance, and that was, I think, because the gentleman concerned was about to take a flight abroad with a one-way ticket. And I think the police wanted him to remain available for questioning.

Is it unreasonable to ask whether the Police invited Dr Haneef to voluntarily assist with their investigations, rather than being arrested and detained involuntarily? Given his behaviour so far, Dr Haneef may well have agreed! Perhaps this was just a test case to try out the new detention laws?

A week later, it became clear that the AFP and Commonwealth DPP were not getting very far. Philip Ruddock blamed part of the delay on:
PHILIP RUDDOCK: Something of the order of 120 gigabytes of computer data is being examined. And as I said at the weekend, that's the equivalent of 31,000 single page documents. So, it gives you an order of magnitude, and it's one of the reasons that the matter takes so long.

PETA DONALD: He also says police need the extra time to liaise with authorities in Britain, and that as Thursday's 6pm deadline approaches, police may well apply for a third time to hold Dr Haneef for longer.

Now I found this a little hard to believe - it takes very little time to get a working idea of what is on someone's computer. The vast majority of files are Operating-System related. The remainder can be rapidly classified into video, audio, and documents, which it takes a few seconds to screen for relevance. I could understand if he had said they were encrypted, or something like that, but this excuse was lame.

Mick Keelty expanded on the scope of the investigation on July 10.
TONY EASTLEY: Is it one of the biggest investigations in recent times?

MICK KEELTY: We've had a large number of these … well not this type of investigation, but we had Operation Pendennis two years ago, which was of a similar size and nature.

These are always complex, this type of investigation, and the thing that we want to ensure that we do is abide by the law, afford people their rights and, you know, stick by the principles of the law which is innocent until proven guilty. And it's up to us to gather that evidence.

On July 12 the 120Gb of computer data ("equivalent to 31,000 pages") doubled:
Mr Ruddock yesterday stressed the complexity of the investigation, saying police had to analyse 120 gigabytes of computer data and 31,000 pages of paper. "These are the issues the court has to take into account in deciding whether or not the (detention) period is reasonable," Mr Ruddock said.

July 16 arrived, and Dr Haneef was finally charged when it became clear that detention would no longer be allowed and he was granted bail, but this was quickly superceded by the cancellation of his Working Visa by Immigration Minister Kevin Andrews on the basis of secret evidence which suggested that Dr Haneef was of bad character.

While Kevin Andrews was (sadly) entitled by legislation (brought in by this Federal Government and in particular Philip Ruddock during his time as Immigration Minister) to cancel any non-citizen's visa on little or no basis whatsoever, it flies in the face of earlier statements that Dr Haneef should be presumed innocent until proven guilty - a right already compromised by the detention laws under which he was being held.

From the ABC's 7.30 Report:
KEVIN ANDREWS: I can't go into the detail Kerry, because that information is protected under the law. But can I say that having looked at it quite carefully and quite seriously, I came to that conclusion that he has had and has associations with people who have been involved in criminal conduct, namely alleged terrorism in the UK.

And the next day in the ABC's AM program:
Kevin Andrews says he formed a reasonable suspicion that Dr Haneef was associated with people involved in criminal activities.

KEVIN ANDREWS: The basis upon which I acted wasn't that there was just some trivial association, it wasn't just because, as has been said in the media, that he happens to be a cousin of a particular person. It wasn't just trivial.

KATHRYN ROBERTS: Speaking to Fran Kelly on Radio National, Kevin Andrews would not be drawn further on the issue.

FRAN KELLY: But the end result is we have a man locked up on your decision, based on secret information, with no recourse.

KEVIN ANDREW: Well based on a decision of the Parliament that certain information provided to me as Minister by the Federal Police is protected information and shouldn't be made public.

The Prime Minister backed his Immigration Minister the following day:
In Sydney, the Immigration Minister, Kevin Andrews, was continuing to defend his actions.

KEVIN ANDREWS: This is not on the basis that the man is related to two of the people in England, that they are cousins, it's much more detail about activities than simply a familial relationship.

KATHRYN ROBERTS: Kevin Andrews made his decision after a secret police briefing but today he was again asked why that information wasn't put before the court during the bail application.

KEVIN ANDREWS: The Director of Public Prosecutions is an independent statutory office holder in Australia, who makes decisions based on the law and the evidence and the prosecution guidelines that they work under.

KATHRYN ROBERTS: The Prime Minister John Howard has spoken for the first time about the decision, and is firmly backing his minister.

JOHN HOWARD: He has acted properly, he has acted in accordance with the law, and it's plain on any reading of the Immigration Act that his decision was correct, it was justified, and it was in the national interest.

It was bad enough that the Federal Government was misusing the laws it drafted to detain and charge alleged terrorists with minimal or no evidence, but it acted to co-ordinate that abuse of power with the laws it drafted to eject undesirables from the country based on a similar lack of evidence. Not only that, but it had no intention of deporting Dr Haneef, merely to keep him locked up and in isolation from his laywers, the media, and any support he may have from family or friends, while charging him for the privilege of being housed in solitary confinement at Villawood.

Furthermore, the Immigration Minister is basing his decision on information which is secret, and will likely never be disclosed. This means that he can stand by his decision, even if all of the publicly available evidence which he considered is rendered obsolete or proven incorrect, as is already becoming the case. He is effectively saying: "Dr Haneef is a bad man. Trust me."

The judge handling a direction's hearing against the visa revocation even commented:
A Federal Court judge has described as "astounding" the Federal Government's position that an association of any kind with criminals - "a cup of coffee, a picnic with the kids" - is enough for a non-citizen to fail the Migration Act's character test. ... "I have been associated with persons involved in criminal activity. I have defended them, charged with murder. Unfortunately I wouldn't pass the character test on your statement," the judge said to Roger Derrington, SC, representing the minister.

"You're not a non-citizen," was the government barrister's reply. "The purpose of the migration legislation is to protect the national interest … the Commonwealth doesn't have the power to investigate the relationships of people overseas."

Justice Spender's voice rose. "That's absolutely astounding, Mr Derrington."

More information about this evidence subsequently came to light. First was the concern that Haneef's visa was revoked on the basis of his personal acquaintance with suspects in the UK who had not yet been charged with an offence. From the Sydney Morning Herald on July 20:
However, UK authorities have not yet charged Kafeel Ahmed while Sabeel is only facing one charge of withholding information.

The basis for Haneef's charge - given neither Ahmed brother has been charged - of being part a terrorist organisation was something Mr Russo said he cannot understand.

Then the SIM card that Haneef was said to have given a terrorist organisation turned out to have no direct relationship to the attempted attacks:
RAFAEL EPSTEIN: Last year when Mohammed Haneef left Britain, he gave the SIM card for his mobile phone to his cousin, Sabeel Ahmed. When Mohammed Haneef appeared in a Brisbane court last Saturday, the prosecutor acting for the Government, Clive Porritt, spoke about the SIM card. He said it was found inside the Jeep Cherokee vehicle that had been smashed into Glasgow airport on June the 30th.

That was a [sic] cited as a reason behind the charge that Mohammed Haneef had recklessly supported a terrorist organisation. Placing his SIM card at the scene of the failed attack was also part of the prosecution's argument opposing Mohammed Haneef's bail.

From July 20:
Hedley Thomas is a senior journalist with The Australian newspaper who's analysed the police record of interview with Haneef and the AFP's affidavit to the court.

He's also sighted immigration department documents which he says were used to advise Kevin Andrews' in his decision to cancel the visa.

HEDLEY THOMAS: These are the documents that were written and compiled by Peter White a senior public servant and in that, he's basically advising the Immigration Minister Kevin Andrews, and he writes Dr Haneef advised the AFP that "he resided with Dr Sabeel Ahmed at a boarding house located at 13 Bentley Rd, Liverpool, UK."

Now the problem is that is not what Dr Haneef advised the AFP.

KATHRYN ROBERTS: So does that in your mind raise questions about the information on which Kevin Andrews has based his decision to cancel Haneef's visa?

HEDLEY THOMAS: Well I think the question has to be asked whether this influenced Kevin Andrews in any way. The record that was produced by the police for the benefit of the Brisbane Magistrates court is more misleading because it claims that Dr Haneef participated in a taped record of interview with the AFP and stated following, "whilst in UK he resided with suspects 1 and 2."

Suspects 1 and 2 you should know are Kafeel Ahmed and his brother Sabeel Ahmed, but I've been through the record of interview with a fine-tooth comb and that statement is just false he doesn't say he resided with suspects 1 and 2 at 13 Bentley Rd, Liverpool, in fact, the opposite is the case according to Dr Haneef's testimony. So you just have to ask how does this kind of material get into official documentation, it's a complete misrepresentation.

KATHRYN ROBERTS: Hedley Thomas says the public can't be confident the information provided to Kevin Andrews by the police was accurate.

HEDLEY THOMAS: The evidence that the AFP are themselves collating they're not interpreting properly and you know you're just left wondering if they can't properly and accurately interpret their own evidence and what it means, then how can we sort of be confident that they're going to be appropriately investigating and prosecuting terror suspects.

I think the whole case is looking like an absolute debacle.

As the Crown case unravelled, John Howard acted on the same day to distance himself from the investigation:
JOHN HOWARD: I have no comment to make about the handling of the prosecution because it's not being handled by me. I think it would be a good idea if people - no disrespect to the media - but I think it would be a good idea if everybody let the prosecution be conducted and let the matter be properly ventilated.

But I am not conducting the prosecution. It's been done by the police and the DPP and if anybody has questions about the conduct of the prosecution then those questions should be directed to the DPP and the police, not to me because, under our system of justice the executive has no role in the prosecution of people nor it should.


Justifiably, community criticism has grown against Dr Haneef's detention and the charges levelled against him.
KATHRYN ROBERTS: Those concerns have been echoed by immigration lawyer Glenn Ferguson from the Law Council of Australia.

GLENN FERGUSON: The puiblic's really got to be concerned because obviously the information that the Minister has based the withdrawal of that, Mr Haneef's visa, is on the basis of what, I take it, he's been told by the federal police so accuracy is very important and particularly when it's not in the public domain.

KATHRYN ROBERTS: He says factual errors could be significant during Haneef's Federal court appeal against his visa cancellation.

GLENN FERGUSON: If it's a situation where incorrect information has been provided and obviously no one's saying it's not intentionally or not at this stage but if there is any in accuracy it should be remedied immediately and the assessment by the Minster obviously has to be made again once that correct information is in his hands.

KATHRYN ROBERTS: But the Immigration Minister Kevin Andrews is standing by his decision. He says he won't be reviewing the matter and nothing reported in the media alters his opinion.
ALISON CALDWELL: Greg Barnes is a criminal defence barrister who has been closely following the developments in the case against Mohamed Haneef.

GREG BARNES: We have seen this case run from farce to farce, from Monday through to Friday this week, and I think what is shows is that the terrorism laws, despite what John Howard said last weekend, these terrorism laws are not working.

It also shows that there is need to lift the veil of secrecy over the terrorism laws. If it hadn't been for leaks and for the media's assiduous work this week, on the ABC, The Australian and various other media outlets, and exposing the flaws in the prosecution case, then none of this would have come out and I think that's an important lesson.

ALISON CALDWELL: Julian Burnside QC is a barrister specialising in commercial and human rights litigation. He's also President of the Victorian Council for Civil Liberties.

He says the Haneef case has highlighted serious concerns about the way the new laws are being implemented.

JULIAN BURNSIDE: The presumption of innocence is not just an empty formula, it is a reality. I think many people would be very disturbed to know that an innocent man has been treated during this week the way Dr Haneef has been treated.

He's been thrown into solitary confinement, carted around in a Guantanamo-style suit. His reputation has been publicly trashed by the Attorney-General and the Minister for Immigration, and all of this to a person who's presumed innocent.

Now that we know the facts, which the prosecution side have, it looks as though he may be innocent, and I think that has made people feel very uncomfortable as it should. Now, if the presumption of innocence means anything, we ought to give it real force and assume that people are innocent, and then look at that whether the way we're treating him is justifiable.

And now the Federal Goverment wants to get out of trouble by deporting Dr Haneef:
Several senior Government sources have told The Sunday Age they were furious at the Australian Federal Police for their handling of the case and wanted to shut the issue down before it did more damage to the Government's credibility.

"Our best option is to cancel the Criminal Justice Certificate, which was issued to keep Haneef here in Australia after we cancelled his visa, and that is my understanding of what our intentions are," one Government source said.

"Cancel the certificate and get this guy out of Australia. The story ends there and he can become someone else's problem."

Mr Ruddock issued the Certificate of Justice so that Haneef's deportation could be stayed pending judicial proceedings. But with the federal police case surrounding Haneef collapsing after revelations that the SIM card he left in Britain was not used in the failed suicide bomb attack in Glasgow, Government strategists believe there is little point holding him in Australia.

"There is no upside proceeding with this. We keep him here, then it remains an issue every day until the election. We deport him and it's over," the source said.

Let me tell you, it is not over. Federal Prosecutors must either prove their case against Dr Haneef in court, while treating him with some humanity by allowing him bail or, at the least, letting him out of solitary confinement. If it is not going to do this, then restore his working visa or issue him with a temporary visa, and compensate him for inconvenience caused. Unless it stands up and does the right thing, the Liberal Party and this Federal Government has one less vote come Polling Day. And unless the Labour Party comes out to stand up against this injustice they will not get my vote either.

To deport Dr Haneef is to completely circumvent natural justice, allowing Dr Haneef no means to clear his name, and only acts to compound the injustice imposed on Dr Haneef. Philip Ruddock, John Howard, and Kevin Andrews - your actions disgust me and make me ashamed to be Australian. And it scares me that this could easily happen to any one of us.

1 comment:

Vijay said...

Thanks for the comment in my blog Sheepish and for this post.

If public opinion can force the Pakistani Supreme Court to stand up and question Musharaff's illegal activities, I expect it will do some good in this unfortunate case too.