Haneef and the true dangers of anti-terrorism measures
After a four week ordeal, Mohamed Haneef has finally left Australia. Kevin Andrews refused to reinstate his visa, but allowed him to go back to India. This "generosity" comes at a price - Haneef is free to leave only on the condition that he doesn't talk to the media or allow his picture to be taken. The government is clearly hoping that if Haneef leaves quickly and quietly the whole affair and the government's role in it will be forgotten.
The Haneef affair should be remembered, not because it is undoubtedly a source of acute embarrassment to the government, but because it demonstrates the dangers of overzealous anti-terrorism laws, combined with the willingness of the government (with the blessing of the opposition and most of the electorate) to undermine the rule of law and trample civil rights in its "war on terror" (or more accurately in its attempt to make political mileage out of the "war on terror"). Ruddock may have the gall to say "I think that what we have seen is that the system worked as was intended", but what we have seen is the failure of "the system" to do what it is supposed to do - ensure that in our pursuit of the guilty we protect the innocent.
Civil rights, separation of powers and the rule of law are core Australian values, they are there to protect everyone one of us. Dismantling them to go after suspected terrorists puts us all in danger. I think this rationale was best described by Robert Bolt in his play about Sir Thomas More - "A man for all seasons":
Roper: … you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
In our haste to get after the Devil of terrorism we have allowed our government to cut down laws protecting our civil rights, to undermine the rule of law and the separation of powers. When you add into the mix the political interests involved and the pressures resulting from them, standing upright in the winds is becoming increasingly more difficult, and the Haneef affair is a good illustration of the results that follow.
Haneef was arrested in the thoroughly suspicious act of trying to board a plane to India, where his wife had just given birth, without having a return ticket and while looking Muslim. After being held and questioned for two weeks, while his lawyers weren't even given enough information to know what the evidence against him was, Haneef was charged under section 102.7(2) of the Criminal Code Act 1995 (Cth):
102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.Penalty: Imprisonment for 15 years.
This provision was included in the Criminal Code as part of a host of anti-terrorism measures hastily legislated by the government. So hastily in fact that the legislation does not even define what "support" or "resources" mean. Quite extraordinary for an offence that carries such severe penalty. In the case of Haneef it was decided that providing a SIM card to a relative, who later happened to be charged with concealing knowledge of a terrorist act, was sufficient to charge him with the offence.
To add to the peril of undefined nature of the offence, bail can only be granted for a person charged with a "terrorism offence" in "exceptional circumstances". Nonetheless, a Brisbane magistrate ordered that Haneef be released on a reasonably low ($10,000) bail. What happened as an immediate consequence of that decision is perhaps the best clearest illustration of the government "cut[ing] a great road through the law" - the executive intervened to subvert the court decision and keep Haneef incarcerated using the migration powers.
Government interference in the process of justice is the greatest threat to the rule of law and to the protection of our civil liberties. Failure to maintain a strict separation of powers between the executive and judicial arms means that political interests of the government are allowed to take the place of justice. It means that decisions affecting our rights a liberties are made not in the open forum of the courtroom, after presentation and consideration of the various arguments, but in the secretive confines of a ministerial office (in this case Kevin Andrews'), based on one sided information, without an opportunity for argument or appellate scrutiny.
The fact that the government was able to take that measure with not a whisper of protest from the Opposition and very little concern on part of the electorate demonstrates just how much danger the rule of law is in when it comes to anti-terrorism measures. An individual accused of a terrorism offence may find himself deprived of all the normal protections that the law gives a person (and lets remember that the person is innocent unless they are proven guilty).
Lets recall that at the same time stories were circulating in the media, fueled by various statements made by the AFP and the government: that Haneef the SIM card was to be used to set off the bomb, that the SIM card was found in the burning vehicle at Glasgow, that Haneef lived, worked and associated with the UK terrorists and so must have known what they were up to, etc. All these allegations have now been proven to be false. Ruddock was publicly stating that courts should be prevented from granting bail for terrorism offences altogether (the implication being that people as clearly guilty as Haneef should not be released) and Andrews was hinting that there is "secret" evidence, known only to the AFP and himself, that must prove Haneef's guilt.
When Haneef's lawyers took a page out of the government's book and released a transcript of his interview, they were publicly and viciously condemned by government ministers, including Howard who contended that now Haneef wouldn't be able to have a fair trial (you don't say!) and Ruddock who was threatening to have Stephen Keim QC prosecuted for daring to release a document with the potential to counter the misinformation leaked by the government.
Haneef is now free in spite of the "system", not because of it. He is free because because his legal team had the courage to fight the government in its own arena of public opinion, rather than their traditional arena of the courtroom, because release of Haneef's interview allowed public scrutiny of the gaps in evidence, because of heightened media interest and because, unlike the cowardly stance adopted by Rudd, Peter Beattie continually questioned the process. A bit of luck probably helped too.
Consider the situation: an individual is charged with a very serious offence, the scope of the offence is not clear, his legal team are not given access to all the information required to defend him, he is being held by virtue of a ministerial decision which cannot be appealed on merits and in relation to which he was not given the right to be heard, he is being vilified in the media by the same government that has locked him up and his lawyers are being personally attacked by the government for daring to defend him. So much for natural justice, so much for presumption of innocence and so much for the rule of law.
Every one of us can become that individual, because we have allowed the government to undermine the rights and values that are there to protect us all. This is the true danger of anti-terrorism measures - the protections for the innocent have been dismantled. Before we allow our leaders to continue cutting the road through the law, we should ask what will protect us from the winds. And our leaders would do well to ask themselves whether undermining public confidence in anti-terrorism laws advances Australia's fight against terrorism.
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