The true face of terrorism measures
Earlier today a magistrate ordered that Dr Haneef be released on $10,000 bail, pending his trial on charges of recklessly providing resources or support to a terrorist organisation (aka giving his cousin a SIM card that wasn't even used in the attempted attacks). Given that obtaining bail in matters concerning a "terrorism offence" is very difficult indeed, Haneef's release on bail says something about the evidence against him.
But Haneef didn't get much time to enjoy his freedom after two weeks of confinement and interrogation. Shortly after the court decision, Kevin Andrews, the Minister for Immigration cancelled Haneef's visa on "character grounds" and ordered that he be locked up in immigration detention to await his trial at the end of August.
Section 501(6) of Migration Act empowers the Ministerto cancel a visa where he believes that a non-citizen "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."
Andrews stated "In turning my mind to the information and advice provided to me by the Australian Federal Police, I have come to the conclusion, I reasonably suspect, that Doctor Haneef has or has had an association with persons involved in criminal conduct."
Naturally, "association" (which is not defined in the Act) can be guilty, for example where a person knows of their associates' criminality, or entirely innocent, such as association with a relative who unknowingly to the person happens to be a criminal. The fact that Haneef was charged with "recklessly" providing support/resources to a terrorist organisation, suggests that the AFP do not think (or cannot prove) that Haneef knew of his cousin's terrorist inclinations. Kevin Andrews refused to be drawn on the issue when questioned about it on the 7.30 Report.
Conceptually it is difficult to understand how "associating", whatever that means, with a relative, without being aware of his criminality, automatically makes you a person of bad character. It is also difficult to reconcile Andrews' action with according Haneef the presumption of innocence that the PM spoke about. However, this is not the biggest issue with what Andrews has done.
What occurred here is a subversion of judicial process (the only process that can guarantee some sort of impartiality and objectivity in such a matter) by the executive arm of government. Not only is this branch of government, through the AFP, involved in prosecution of Haneef, it also has a vested political interest in the outcome of the proceedings - it would be quite embarrassing for the government if its crackdown on terrorism netted an innocent person. Such an eventuality would also vindicate the concerns about anti-terror laws that have been expressed by those who remain concerned about the erosion of civil liberties.
The government waited for the outcome of the bail hearing and when a desired judicial outcome was not achieved, it took matters into its own hands, exercising immigration detention powers. The purpose of those powers is to detain a person while their visa status is determined or pending deportation. Their use as a substitute for pre-trial detention smacks of illegitimate circumvention of legal process and abuse of power. The fact that Haneef's lawyers were apparently assured that such action would not be taken casts further doubts over the legitimacy of the government conduct.
Kevin Andrews' action reveals the true face of terrorism measures. Dangers lurk not only in extraordinary detention powers, restrictions on ability to obtain bail and ill-defined offences with very severe penalties, they also lurk in the readiness with which the executive branch of government subverts the protections accorded to the accused by the legal process, the willingness that it shows to ignore the doctrine of separation of powers and its ability to become the judge and jury as well as the investigator and prosecutor. Labor's support for this action suggests that this phenomenon is party-neutral. No matter what party is in power, those suspected of terrorism offences (be they attempting to blow up buildings or sharing a SIM card) will find themselves squeezed from all sides with few legal protections available to them.
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