Published in Lawyers’ Weekly, 27 July 2007
The principles of modern democracy are rapidly being undermined by laws that place ministerial discretion above due process
On 2 July Dr Mohammed Haneef was detained for questioning under Australia’s terrorism legislation following his second cousins being implicated in an attack on Glasgow’s airport terminal building and a failed car bomb attack in London. An old mobile phone SIM card Dr Haneef had owned was allegedly found in the vehicle that was used in the failed attack on Glasgow airport.
Eleven days after being detained for questioning Dr Mohammed Haneef was charged with recklessly supporting a terrorist organisation. Three days later, Dr Mohammed Haneef was granted bail on a surety of $10,000 and on condition that he reports three times a week to police and stays away from international departure points. He had previously surrendered his passport.
The legislation under which Dr Haneef was held reverses the normal bail presumptions and only allows bail to be granted in “exceptional circumstances”. The magistrate gave eight grounds for finding that “exceptional circumstances” existed. She concluded that the prosecution had not established a direct link between Dr Haneef and a terrorist organisation and that there was no evidence that his SIM card had been used in a terrorist attack.
Australia is dependent on overseas-trained doctors, and this will continue to be so for the next decade. This is particularly so in rural towns. Many of those overseas-trained doctors come from the Indian subcontinent.
The police have raided several overseas trained doctors’ homes and seized files and other documents. They have taken several doctors in for questioning only to have subsequently had to release them as there was no evidence against them.
The current police raids are inspired by Islamophobia or a more generalised racism. The police’s action in rounding up so many people for questioning is hardly an example of intelligently using the draconian provisions of Australia’s terrorism legislation, and it may lead to overseas-trained doctors avoiding Australia.
Abuse of due process
In the afternoon following the court case in which the magistrate held that the prosecution had not provided evidence of a direct link between Dr Haneef and a terrorist organisation, the Minister for Immigration and Citizenship, Kevin Andrews, announced he had, on character grounds, cancelled Dr Haneef’s visa and that Dr Haneef would be taken into immigration detention.
“In particular, a person fails the character test if – and I quote – ‘the person has or has had an association with someone else or with a group or organisation whom the minister reasonably suspects has been involved or is involved in criminal conduct’,” he said.
The minister claims that he had come to this decision after information was supplied to him by the Australian Federal Police. Such information was, presumably, identical with that placed before the magistrate who set Dr Haneef’s bail conditions. Alternatively, the minister may be relying on information which is hearsay or so flawed that it cannot be put before a court. This is, after all, a country where the Prime Minister claimed that refugees were throwing their children overboard and took us to war in Iraq to remove non-existing weapons of mass destruction.
Julian Burnside QC of Liberty Victoria criticises the minister’s actions as an abuse of due process and natural justice.
Burnside points out that the minister is not using his wide discretion in this case to place Dr Haneef in immigration custody for the purpose of removing him from the country. Rather the Minister for Immigration and Citizenship is using his discretion to make it impossible for Dr Haneef to exercise his right to bail and supervised liberty in the Australian community.
The minister has gone so far as to claim that even if the courts find that Dr Haneef has not committed any offence he could still be deported at the conclusion of his trial.
On 18 July The Australian newspaper revealed it had been supplied a full transcript of the early police questioning of Dr Haneef. But the minister continued to withhold the information as to the grounds for his decision to revoke Dr Haneef’s work visa.
Few if any Australian citizens would have any idea whether or not the people and organisations they have contact with are involved or have been involved in criminal conduct.
Australian-born citizens who do not hold dual nationality may have little interest in what the minister thinks of their character. But all permanent residents who weren’t born in Australia could – on the grounds that “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” – be stripped of their permanent or temporary visa.
In recent years people who have lived almost all of their lives in Australia have been deported by the Howard Government. The government has the capacity to remove the Australian citizenship of people who were born overseas but who subsequently took out Australian dual citizenship. It would only be a small step to remove an Australian-born citizen’s right to remain in Australia if they had subsequently taken out dual citizenship in another country.
The ruthless nature of Attorney-General Philip Ruddock became apparent during the time he was in charge of the immigration portfolio. He has since told the ABC’s Lateline on 17 July that he was going to tighten the bail provisions of his terrorism legislation to make sure that people in Dr Haneef’s position were not granted bail.
This will mean either that “exceptional circumstances” will become so circumscribed the term will become meaningless or that bail will be denied to anyone charged with a terrorism offence. Such interference in the judicial process has the potential to change Australia from a Westminster-style democracy to one where ministerial fiat becomes the order of the day.
Copyright © 2023 John Tomlinson