Dr Haneef’s bail decision in Brisbane – court decision usurped by Ministerial fiat
Dr Mohammed Haneef was given bail this morning on a $10 000 surety, with a requirement he report to police 3 times a week and that he not leave the country. I attended the court for the handing down of the Magistrate’s decision.
It should be noted that, had the federal government had their way, this man would be imprisoned for the duration of what could well be a very prolonged trial, despite not being found guilty of anything, and no evidence having been presented that he presented any safety risk to the Australian community.
Despite being heavily involved in the passage of laws, it is not very common for me to witness the application of those laws in a court room. I believe this case is a very important test of how well some of our most fundamental legal freedoms survive in Australia, so I wanted to be present to see what happened, even though it meant dropping some other commitments.
The decision was due to be handed down at 9.30 am. The 26 seats in Magistrates Court number 26 were all full, and there were another 15 or so people who stood in the doorway and the short aisle. About half the observers seemed to be media, plus some members of Brisbane’s Muslim community, and a few protesters who had come in from outside.
Dr Haneef was led into the courtroom at 9.39am. He was handcuffed, and dressed casually but neatly. He was seated in the dock, behind a glass panel. A couple of minutes later, the court assistant notified the room that the handing down of the decision would be delayed until 10am.
Dr Haneef looked remarkably relaxed to me, considering the circumstances. He occasionally looked around, observing the people gathered there talking, but basically appeared to just be waiting patiently and calmly.
The Magistrate didn’t actually appear until 10.15am. She went through the key issues, which were basically whether Dr Haneef was a flight risk, and whether exceptional circumstances existed (as defined under Section 15AA of the Crimes Act) to justify bail being granted.
I am paraphrasing her here, but the Magistrate noted a past decision which recognized that no grant of bail was totally risk free, but it was an important right in a civilised society and we could not protect our freedoms if we were to insist on zero risk. The decision then becomes whether there is an unacceptable risk in granting bail, rather than zero risk.
It should be noted that no evidence was presented by the government at any stage that Dr Haneef is a safety risk to the community, only the very dubious suggestion that there is a risk he might try to flee the country. As the magistrate noted, he now has no passport, has worldwide notoriety, and it is feasible for him to be subject to surveillance. I would also add that any suggestion the Indian government might try to surreptitiously issue him with a new passport in such circumstances is ludicrous.
The Magistrate also noted a range of other factors which cumulatively led her to conclude that exceptional circumstances did exist in this instance. These included that there was no allegation or evidence put forward by the government that Dr Haneef had any direct association with any terrorist organisation, no evidence had been presented by the govenrment that the SIM card he gave to his cousin twelve months ago had been used in any way in conjunction with a terrorist activity, that he had no criminal history, he had a capacity to work, was a member of a professional association, was of good character, had no passport and could have his movements monitored by authorities.
The case was adjourned for committal mention on 31 August.
There is a significant and growing unease amongst more and more Australians, especially but by no means limited to Muslim Australians, that we have to think twice about who we send or receive emails from, who we make phone calls to, who we are seen to be talking with, and of course who we might lend mobile phones to – including family and relatives.
I believe it is important to show strong support at this time for upholding our basic right to live freely in a democratic society, not cowed by an ever-present threat of being caught up in guilt by association and trial by insinuation.
If we want to be totally free from the risk of every threat to our safety, we would never go outside our front doors, and certainly would never travel on the roads. If we allow hysteria to determine the content and applications of our laws, we may as well give up any pretence of calling ourselves a democracy and dial up a dictator now.
I spend a lot of time in the Senate looking at how legislation might operate if it is passed into law. It is always interesting to contrast government assurances about how proposed laws will be applied and how things operate in practice.
Back before the Senate came under the control of the Coalition government, Senate Committees used to be able to examine proposed laws in detail, which is what occurred with the Anti-terrorism Bill 2004. As noted in paragraph 3.25 of the Senate Committee’s report into that Bill, at the time the Attorney-General’s Department assured the Committee that a provision allowing a reasonable amount of ‘dead time’ where someone could continue to be detained without charge by police whilst not being questioned would probably be limited to around 16 hours.
Dr Haneef was arrested around 11pm on 2 July. As it turned out, just under 12 hours of interviews and questioning of him by police were then conducted, concluding around 5.30pm on 3 July. The police kept him in custody since that time without further questioning right through until charging him over ten days later – much longer than the government assurance of around 16 hours given to the Senate Committee.
Given our government has locked up refugees, including children, for years at a time without even the faintest suggestion they might be guilty of anything, this probably seems minor in comparison. But it is actually a long-standing fundamental common law right which sits at the foundation of a liberal democracy, so I get rather edgy when it gets eroded without very good reason – particularly when it occurs in direct contradiction to assurances given by the government prior to laws being passed.
UPDATE: As indicated in many comments below, not long after I posted this, the federal Immigration Minister stepped and announced that he was cancelling Dr Haneef’s immigration visa in the “government’s political interests” “national interest”. Just hours after a Magistrate, having considered all the evidence put forward by the government, specifically stated that Dr Haneef was of sufficiently good character to be allowed into the community on bail, the Minister says he has cancelled his visa on character grounds.
This is a classic example of why I campaigned so long to reform the Migration Act to limit the enormously broad, undefined personal powers of the Minister to use their own discretion to lock people, even when they have been convicted of no crime. There are more than enough examples around the world to show why there are few things more dangerous than a government Minister being able to unilaterally decide that someone should be indefinitely detained without charge or conviction. It should be emphasised that Dr Haneef has not been charged with anything under the Migration Act, and no evidence has been presented to the public or a court showing why his character was such that his visa should be cancelled. If is charge regarding giving his SIM card to his cousin was dropped tomorrow, it would have no direct affect on the Immigration Minister’s decision.
The federal government has brazenly perverted the law for political purposes. They have (a) overturned the fundamental freedom that a person is innocent until proven guilty, (b) locked someone up on secret evidence (assuming there is any evidence) (c) indefintely detained someone without a charge (d) acted literally on guilt by association, and (e) reinforced the precedent that Ministers can make a political decision to lock someone up, regardless of what the Courts think.
Not surprisingly, the ALP has once again taken the politically correct decision to support the federal government in perverting the rule of law and degrading a fundamental freedom.
140 Comments, Comment or Ping
philip travers
Coincidence or not,I posted a statement here and somehow the server wasnt being a good indian,and it told me to get back to you later.Perhaps it was working from Paraguay and had been perusing David Icke.com.who knows.I am disappearing for another couple of days Senator!?On matters related to my questions ,I think the attitude of Howard in making laws more difficult for suspects,probably means there is a real problem of adjusting common law practices to a Statute derived organization like the Federal Police,and the hardening up processes may mean this new set of laws fails in a legalistic and historical sense re acting principles and precedents.Turning all security and policing functions into a co-adaptable melded co- organising organizations is a legal nightmare in practice and operations.The N.S.W. Police had problems with A.S.I.O. operatives around the OLYMPICS and Commissioner Ryan.If you call in the army, in an emergency,and their powers of operation make them take risks that the civil Police would object to, the problem then is would the army set the precedent behaviour!?State Police enforce common law matters mainly as there role involves as individuals,still in some jurisdictions an assessment that is personal as much as what they can do by established precedents.Howard has been melding the Federal jurisdiction with the States and even the Armed Forces..the pay off isnt good government ,but ,a dogs breakfast,where a soldier could,theoretically steer the responses of Police in ways unacceptable to them and community.The protest at Pine Gap shows the legal fraternity is unwilling to notice what they are deliberately creating.This stuff is dangerous to all specified security and policing functions,and they the Police need to resist the melding.
Jul 16th, 2007
Aurelius
Andrew,
I commend you for being ‘hands on’ in your job – and I wonder how many others of the 250-odd MPs who passed this legislation were present to see how it was being administered.
If I were staying in your state, come the next election, I would vote for you based on what I read on your blog (despite having been and worked for two parties which *aren’t* yours) and your post here displays a commitment to your ideals beyond just rhetoric.
Good luck in the election, and thankyou for your writings here, as they give a unique insight into the deliberations of a real live Senator.
- Aurelius
Jul 16th, 2007
paul walter
Andrew, can I ask you what you make of the Opposition leader’s responses so far. Any explanation as to why he might be taking the trajectory he is. That is, ( misplaced ) conviction or election pragmatics )?
What do you make of all the fuss and fluster from the NSW premier about the upcoming globalisation gabfest in the “Forbidden City”, Sydney?
Do you think the opposition will rehabilitate itself at a more apt time or do you think the backsliding has a basis in substance.?
Will we be exchanging the brownshirts for the blackshirts next federal election?
Jul 16th, 2007
Aron
I have just been outraged to read that the immigration minister has cancelled Mr Haneef’s visa so that he will be placed in immigration detention. Such wanton political interference in the ‘justice’ process is incredible, and a testament to how desperate a sinking government is in clawing some kind of political mileage out of this. They will do anything, and hurt anyone, and it is dispicable beyond belief to fly in the face of the magistrate in this manner, and of all natural justice. The Magistrate concluded that Haneef was not a security threat, and that he was a man of ‘good character’, and yet Andrews has chosen to cancel the visa on ‘character grounds’!
Sigh. Good on you, AB for being there.
Jul 16th, 2007
Stevo
Andrews’ decision to cancel his visa makes me feel physically ill.
Jul 16th, 2007
Lynette2
What Aron said. Disgraceful.
Jul 16th, 2007
Kyle Schuant
And now they’re locking him up in immigration detention, since he’s supposedly associated with criminals.
Woomera, Villawood, Guatanamo, investigative detention – I suppose our government is just very keen on locking people up.
Jul 16th, 2007
Aurelius
I too just read what Aron has informed us.
This regime must be overthrown. They are despicable.
Jul 16th, 2007
Noel
Tuff on Terra
Mr Howard & his gang have not given up on this election yet. What will his next wedge be?
What does it matter if one individual has his basic human rights removed, as long as Howard is returned.
Jul 16th, 2007
Marilyn
The law Andrews cited was designed to protect victims of crime from detention and deportation after Simaplee Phoungthang died in Villawood detention centre.
This is sheer spite on Keelty’s behalf and he would be sacked in a normal country.
Here he is patted on the head by Howard for being a good boy.
Now I have a dilemma – three of the “terror group” have been released without charge in London yet this man has been locked up for knowing his own cousins.
Jeuse weeping. I knew this was coming though if bail was granted. Remember Al Kateb? Lifetime detention for no crime.
Jul 16th, 2007
Michael
Isn’t it enlightening to see a Govt Minister use the immigration system as a punitive alternative to the criminal justice system?
Jul 16th, 2007
al loomis
would someone cite any evidence that the nation of australia is ruled “by the people”?
otherwise, i might conclude you don’t know what democracy is. in any event, your masters are acting in ways that, if they spoke german, or russian, you might be willing to characterize as authoritarian, even fascist.
facts count, children. your shamefaced lies about democracy are exposed. the worst part is, you are afraid to admit the truth lest you be required to choose between action, or participation in your own enslavement.
the pollies have trained you well. their voters are a useful blend of shallow bravado, ignorance, and simple cowardice.
well, keep your heads down, you’ll be right, for while.
Jul 16th, 2007
Marilyn
It is illegal ot use it as a blunt instrument in this way.
Jul 16th, 2007
paul walter
It’s difficult to conjure; to get your head around arrogance at this intensity on this scale.
I seem to remember that Andrews and Ruddock are two of the great self-proclaimed “Christians” of this government.
Like, up there with persecuted pastors Niemeyer and Niemoller of tragic ww2 fame?
Yet apparently some folk have difficulty in coming to terms with the scepticism of many in the community concerning the more punative, fundamentalist types of “Christianity”?
Jul 16th, 2007
brokenleftleg
And to make matters worse, the Libs for Ballarat are still advertising their “respect for the rule of law” in their 30 second TV commercials.
It’s a mirical I haven’t put my foot through the screen.
Jul 16th, 2007
brokenleftleg
Andrew, if Dr Haneef asks if he can borrow your pen, what do you do? it’s 15 years remember!
Jul 16th, 2007
jan 1
One would have to believe that, in an issue such as this, and given the amount of publicity around it, that this man’s visa would not have been revoked without the knowledge of the PM, head honcho of our liberal party.
Is this party really hoping to win an election by flexing its political muscle against one single man who, to date, has not been proven guilty in a court of law of any crime at all? I ask you, have I been badly mistaken, or is this really how Australia is going to allow people to be treated. Could be anyone’s father, son, brother, whatever!
Good to see you there Sen. Bartlett! At least someone from the government gave a damn! Proves a point ‘though…we really need to think about, and make our votes count!
Jul 16th, 2007
Zen
Unfortuantely, Australians haven’t got a good record in dealing with overseas professionals. Mr. Utzon, the world famous Danish architect and the designer (and builder) of the Sydney Opera House was basically chased out of the country. (The present government would most probably get him arrested). He promised never to set his foot on our soil. He refused to accept the invitation and come to Australia even for our Bi-centeniary celebrations.
Now, Australians had the cheek to apply for the Sydney Opera House to be heritage listed.
We need overseas doctors as otherwise, according to the today’s morning TV program from NSW, our health system would colapse overnight. But we treat the overseas doctors who come to our rescue as third class lepers and idiots.
The same government who, 10 years ago, cut funds for medical training of our own children has to rely on other countries who have not failed to provide funds for their children’s education.
The Minister for Immigration who does represent the government claims that his duty is to act in ‘the national interest’.
I thought that education should be on the priority list of any ‘national interest’.
As for the current government it borders to… borders.
Jul 16th, 2007
PC Police
Andrew
By my count this is the fourth terror suspect you have supported.
Could you tell us if there is one you haven’t. I am not including suicide bombers this is group.
Thanks in advance.
Jul 16th, 2007
Andrew Bartlett
I don’t know which cases you are referring to PCP. I support due process, traditional legal freedoms and preventing governments from usurping the courts when it comes to deciding who should be locked up. I can only assume you don’t.
I’ve been involved in hundreds of cases where these principles have been breached. A fair trial and due process is essential, regardless of the allegation. Orchestrating a label of ‘terror suspect’ does not mean (or should not mean) that a fair trial goes out the window, or that politicians should decide who gets locked up rather than courts.
Jul 16th, 2007
Lotharsson
Re: 16 hours turning into 12 days,
maybe it’s time our lawmakers took a leaf out of the US Founder’s book(s) and build into their considerations and systems the presumption that the law will be applied by untrustworthy individuals. Any loophole left will eventually be exploited. Anything without enforceable checks and balances will eventually be abused.
It worked quite well for a couple of hundred years in the US, although it’s showing a lot of strain under the sustained Republican assault of the last few years and needs some serious maintenance.
Jul 17th, 2007
PC Police
Well actually Andrew I don’t think you have the security of the Australian people at heart.
If this guy is connected to those “bad” dudes in the Uk we could have been in serious trouble.
The government is entitled to do what it has with this person under the law.
Jul 17th, 2007
Andrew Bartlett
Well thanks PCP – very nice of you to make a grotesque smear without any evidence at all to back it up. No wonder you’re a fan of the Howard government.
I note your support for laws giving a Minister power to lock someone up indefinitely without charge and without a decision of a court.
Personally, I think maintaining Australia as a democracy with a separation between the courts and the executive is the best protection for the security of the Australian people, but each to their own I guess.
Jul 17th, 2007
Lotharsson
PC Police, is that all it takes? An allegation that someone is “connected” to someone bad, and you’re locked up and interrogated for a couple of weeks? Why not thought crimes while we’re at it? Or perhaps we should try to retain the principles of rule of law that says that you have to actually commit a crime before the state punishes you (noting that control orders and some of our laws seem to have already crossed that boundary – but that sorry state of affairs is another story…)
There’s an awful lot of “connections” reported in the press, but most or all are mere innuendo. You attend the same place of worship, you have a connection. You work at the same place, you live in the same house, you are friends, you attend the same learning institution. None of these prove you support those people in every endeavour they ever engage in, except when politicians need to connect you to a terrorist plot. Are you sure all of the people you’re connected with are kosher?
The politicians putting out the statements about “connections” know full well they’ll be read by the likes of you as evidence of guilt, but that they can fall back on strict definitions of the words they use if they ever need to deny implying that guilt. And they can use the implied guilt to get a sizable chunk of voters to go along with a little bit more power for politicians here, a little bit more for the police there, and a little less civil liberty for everyone else.
And you’re happy for them to lead you along by the nose…
Jul 17th, 2007
rabee
Labor is disgusting on this issue.
This time round, Labor won’t be getting my vote. Thanks Andrew for giving me a reasonable alternative.
Jul 17th, 2007
pale
PC.
Thanks for putting up the other side.
The Government have a clear duty of care towards everybodies famlies.
The way I see it PC its rather unlikely you could not help but “know the attitude of your- Cousin “. This person lived! with them in Liverpool Sydney.
The magistrate was not asked about his Visa.
We would not be doing our job if we didnt look again.
Too risky. The assocation is well and truely there.
Remember – His Family who bombed the UK
His mobile card.
His cousin.
He lived with them in Sydney Liverpool so probably knew his cousins attitude.
You would have to wonder if you should allow him to freely wonder.
It is good he has a lawyer who will work hard to clear his name.
I hope if he is innocent he will quickly sort out any misunderstandings.
However i think we must err on the sade of caution when it comes to our national Sercurity.
Jul 17th, 2007
AndrewB
You can imagine George ‘W’ enviously gazing across the Pacific at the Howard government thinking: “what… you can actually do that, in your own country?? Without those pesky courts gettin’ in your way! Am gonna get me some power like that Andrews dude.”
Jul 17th, 2007
Michael
Andrew, I just want to congratulate you for your stand here. I am very disturbed by Andrews has done. This gov’t has shown that it will ride roughshod over individual liberties, due process, convention and principle to get it’s own way. Whether this is an electoral wedge I don’t know, although likely. But this gov’t has shown itself to be one of the most control obsessed in my memory. It has consistently undermined democratic processes and human rights to ensure it gets its own way.
Thank you for holding them to account. I’ll be voting for you in the coming election
Jul 17th, 2007
Blair Bartholomew
Dear Andrew
“Not surprisingly, the ALP has once again taken the politically correct decision to support the federal government in perverting the rule of law and degrading a fundamental freedom.”
Surely you mean politically popular or politically expedient.
“Political correctness (often abbreviated to PC) is a term used to describe language or behavior that is intended, or said to be intended, to provide a minimum of offense, particularly to racial, cultural, or other identity groups”
From Wikipedia, the free encyclopedia
Jul 17th, 2007
Paul Frijters
Andrew,
you’re fighting for a worthy cause. Well-done and please keep at it.
Jul 17th, 2007
John Hinchcliffe
Is this responsible government or are we now subjected to communism and heavy handed legal moves like happens in Russia etc. This is not responsible government, but racial repression.
Jul 17th, 2007
Ken Lovell
Related principles were involved in the deportation of Scott Parkin and I don’t remember Labor raising any objection to that either, but perhaps my memory’s faulty.
I’m afraid the ‘Don’t fuck it up Kevin’ mentality seems to have afflicted a large number of Labor supporters. Unable to work out what Labor did to gain such a lead in the polls, they’re terrified that the fortunes will change just as capriciously, and they’re still locked in the ‘For god’s sake don’t upset anyone, it might be a wedge!’ mindset of the Beazley years.
It might work and Howard might lose the election, but on present indications I wouldn’t feel any great enthusiasm about the new mob.
Jul 17th, 2007
Mandy Singh
Andrew,
Thanks for posting your thoughts on this issue.
I am in agreement with this statement. Since Haneef’s behaviour – at even the greatest stretch – could only be considered to be at the very fringes of terrorist activity, we are in a perfect position to test the limits of the Government’s intent and ability to exercise power for its own agenda.
As we have seen from Minister Andrews’ actions today, it is clear that the Government is performing with all its arrogance. I strongly believe that Australians need to stand up and say that we won’t allow justice to be trampled in this fashion. It grieves me deeply to think about what has occurred.
Again, thankyou for your reasoned and intelligent thoughts.
Jul 17th, 2007
thordaddy
Mr. Bartlett,
I part with Mandy Singh in her admiration for your statement:
You can’t honestly believe that the majority of real Australians, which I suppose would include you, are feeling “cowed” by the things you speak of.
Are you claiming that 10-12 days detention and then bail for someone who may have been collaborating with mass murdering jihadists (in fact, he was related to one such jihadist, no small fact indeed) gives credence to your protestation…? I don’t think it does.
I think you are playing politics because you know that the chance of the average Australian getting caught in such a “predicament” is slim to none and slim is out of town. Your statement is pure hyperbole and one is compelled to figure out why this meme of the completely innocent Muslim being persecuted by the evil Anglo has such traction amongst you and many of the contributors to this blog?
Jul 17th, 2007
Sylvia Else
I was looking for indications about whether this specific power (under subsection 501(3) of the Migration Act, which does not require natural justice) had been used before. If it has been, then there should have been notices laid before parliament (501C(8) an 501C(9)) and I cannot find any.
However I did find a reply to a question on notice here in which then minister, Philip Ruddock, indicated that in the year 2001/2002 he had personally cancelled 137 visas, a number that was almost equalled (135) in the part year 2002 to March 2003.
This is a significant workload if the minister is giving it proper consideration, and not simply acting on the recommendations of underlings (whose could have made the decision themselves, but with the risk of its being overturned by the AAT).
I wonder what the numbers are now.
Jul 17th, 2007
Zen
PC Police
Our government has a responsibility towards Australian citizens and to protect their security, whether it’s Mr. Habib or Hicks or the entire community; That’s what they are paid for.
One may get the impression that a convicted person like Mockbel is better treated by the Greek police than a foreign doctor who has not even been to trial in Australia.
I also understand that the government agencies should protect us from any threats internal and external. For some years though, one cannot help thinking that whilst the ‘global security’ is at our government’s heart, the domestic crime rate is on the rise. The police cannot even be sent to WA because they are ‘too stretched’.
Nobody in this debate claims that Dr. Haneef is guilty or innocent; we are pondering over the way he has been treated. The government has the reponsibility to act fairly and to be seen as acting fairly.
Unless proven guilty dr. Haneef, or anyone in his shoes, should be treated with dignity. And, if we believe in justice system, law and order in this country, we should leave the matter to the courts. So far, everybody has a go at that doctor; media, politicians, police, overseas lawyers.
Politicians make laws so they should trust the laws they make and the judges they appoint.. After all, many people in our parliament are lawyers. They should know better.
Jul 17th, 2007
TrishaM
My unease has now moved to alarm. If someone can be deprived of a visa by this arbitrary process, where the Minster says he has information, but won’t let the man’s lawyers know what it is, and expects us to take him at his word after 10 years of lies (Never ever GST! non-core promises! Wheat for Saddam and money for us! Tampa! on and on it goes) then none of us are safe.
When they came for the German-accented mentally-unwell woman, I said nothing because after all I am not unwell, nor do I have an accent. When they came for the Phillipina who was also unwell, I said nothing, I am not unwell, nor a Phillipina. (Neither is she.)When they came for the Pakistani doctor I said nothing, because I was not a Pakistani, not a doctor … and when they came for me … there was nobody left to stand up for me.
Jul 17th, 2007
PC Police
Nonsense senator.
I have never ever seen you overtly support national security issues the way you seem to offer warm comfort to problemtic people.
You are quickly gaining a reputation for being soft on national security.
Let me ask you: what will you do if and when this person is convicted of terror charges here or India. Will you apologise?
Jul 18th, 2007
Marilyn
It is very clear that Andrews flat out lied when he said the information came from the feds because the cousin has not been charged with being in a terrorist organisation in London, the Indian government could not find that he had done anything wrong at all and demand now that he be treated decently and the papers supplied to cancel the visa say that Dr Haneef has a spotless record and would be a positive contributor to the country.
Those visas he cancelled included the Bakhtiyaris, the Sawaris, Ebrahim Khan and a few other Afghans and he relied on old, false Pakistani documents to do it.
It is clear that the pom. cop never spoke to the boy, had no interest in the boy and seems to have wandered off home again.
AFter all of this Andrews says he is going to deport him regardless so why go through this deranged charade? The feds lied and f…..d up again.
Jul 18th, 2007
The Piping Shrike
There are often things you say Senator, with which I do not agree, but your stance on this issue, for the correct application of the law, is appropriate and commendable.
If those laws were properly applied and he is found guilty, then, PC Police, there is no contradiction with this stance.
Jul 18th, 2007
Lotharsson
Er, PC Police, if Haneef is convicted, what exactly would you have the senator apologise for? For upholding the rule of law and the processes that go into it?
If Haneef is found not guilty and it becomes evident the case against him was never anything but weak, will you apologise for wanting to lock him up and/or kick him out of the country on the basis of flimsy allegations?
National security also includes the security of individuals within their society, including the freedom from fear of arbitrary detention.
Based on your posts here, you’re rapidly getting a reputation for being soft on the democracy and rule of law aspects of national security. Wouldn’t you be far happier under a more authoritarian regime where they don’t let such niceties as presumption of innocence get in the way of incarcerating or executing those accused by government officials of opposing The State?
Jul 18th, 2007
ken
Can anyone find me any government that hasn’t “shown that it will ride roughshod over individual liberties, due process, convention and principle to get it’s own way….or for that matter a vote seeking senator
Jul 18th, 2007
Rod Ryan
If associating with bad people is illegal, how do police, lawyers and judges, for a start, do their jobs?
Shouldnt all those ministers associated with members of AWB be deported?
Jul 18th, 2007
thordaddy
The presumption of innocence until proven guilty is a solid legal tradition, but only the most foolish would think it applies to the whole of society.
No one in there right mind treats every interaction with others under the principle of innocent until proven guilty. We see people on a daily basis who trangress both civil and moral laws and no one will contend that they must be convicted by a court of law in order to establish their guilt.
Of course, this does not mean that Dr. Haneef should be sent to jail based on public suspicion, but it also does not mean that the public is wrong for being suspicious of Dr. Haneef. In fact, this suspicion seems to indicate a much healthier outlook than the current meme running amongst Dr. Haneef sympathizers in that he represents another completely innocent Muslim unfairly persecuted by the evil Anglos.
Jul 18th, 2007
Darren Lewin-Hill
Thanks for your first-hand account of the Mohamed Haneef bail hearing, Andrew. It is, of course, outrageous that Kevin Andrews has exploited the Migration Act for such a dubious purpose, but what also leaps out at me is the sheer breadth of what might constitute an association with ‘persons involved in criminal conduct, namely terrorism’, to quote Andrews in yesterday’s edition of The Age.
That’s where the insinuation comes in, with Andrews implying what he is not willing to state explicitly for fear of being held to account – namely, that Haneef’s association amounts to complicity in terrorism, despite evidence that, on its face, suggests the association concerned was one of blamelessly helping a relative with some additional phone credit. To exploit the Migration Act on that basis is despicable, and thank you for highlighting this important issue.
Jul 18th, 2007
Lotharsson
Ken,
Gordon Brown in the UK appears to be proposing a step in that direction by handing back some government powers to parliament and starting debate about a bill of rights.
Granted this is the UK which has its own history of riding roughshod over individual liberties etc. but it’s an encouraging sign.
Jul 18th, 2007
ken
Yes on the surface your right Lotharsson – howveer i’ve never yet seen a new Government, or Opposition, or candidate stadning for elcetion that hasnt espoused such wondrous purity of intenet, FOI, Whistleblowers, standards of behaviour, codes of conduct, transparency etc.
Some even try to asctually impelement some of it, more fools them – see the demise of Greiner by his own creation.
Most however live by the tried and true rule that there is a positive correlation between longevity of power and retreat to riding roughshod, its simply a matter of whios on the bus – this collective mob here would be no different gvien the chance.
Jul 18th, 2007
Graham Bell
Andrew Bartlett:
I do not know if Dr, Mhd. Haneef is guilty, innocent or otherwise …. but I do know that Australia’s savage new “anti-terrorism” laws have been shown up as impractical, counter-productive and ineffective and are of great benefit to the terrorists’ cause.
Now, how quickly can you and your colleagues assemble yourselves in a special session of Parliament to get us a workable set of laws to fight terrorists and to repeal the current dogs-breakfast?
Never mind Howard, he’s only a prime minister. Never mind his ministers. Never mind the news media.
Getting us a workable set of laws is a duty that all parliamentarians – regardless of party or faction – owe to the citizens and residents of Australia.
Jul 18th, 2007
The Feral Abacus
ken, you said at #42 “Can anyone find me any government that hasn’t “shown that it will ride roughshod over individual liberties, due process, convention and principle to get it’s own way…”
Just for arguments sake I’ll nominate the Hall government in SA 1968-70. If only we could once again have a choice between the likes of Hall and Dunstan on election day!
In any case, surely the argument here is not over whether the current Federal govt occasionally brushes aside the more arcane niceties of democratic principles. Rather, it is that this government is notable for systematically undermining democratic conventions and institutions in order to achieve its political objectives.
Bjelke-Peterson aside, I can think of no precedents in recent history.
Jul 19th, 2007
The Feral Abacus
Conversely ken, if you are correct in your thesis that the Howard govt is behaving in a manner typical of all governments, it should be easy to compile a long list of precedents – and without needing to go as far back as the Menzies era.
In any case, when governments start to govern as badly as this it is up to the public to hold them accountable.
Jul 19th, 2007
scared stiff
What anti-terrorist measures would have prevented the Reischstag fire? Please implement them now!
Jul 19th, 2007
John
Hi, Andrew
the word usurp is appropriate!
I have written two posts about this issue.
http://truepolitik.blogspot.com/2007/07/haneef-bailed-detained-by-minister.html
and
http://truepolitik.blogspot.com/2007/07/haneef-interview-and-politicians.html
Both can be accessed from the home page
http://truepolitik.blogspot.com
John
Jul 19th, 2007
Lotharsson
So what’s your conclusion, Ken? You can’t trust any of the b*stards so we might as well give up expecting anything democratic from anyone?
I’m trying to figure out what the point of your post is. It mostly seems to be conceding defeat, but you take the effort to post which seems like you don’t want to give up on it.
Jul 19th, 2007
zen
thordaddy
One would expect that a government with fat cat advisers and the whole army of lawyers would behave more professionally.
At first, the medical profession was thrashed by suggestion that the doctors are to kill you not to cure you; then ALL overseas doctors were thrashed and their qualifications were very much in doubt; then Indian doctors were thrashed and finally a thordaddy called Dr. Haneet’ a jihadist’ because he happens to be Muslim. And the fact, that jihadists never deny their active role in a holy war and Dr. Haneef never admitted that he had any connections with terrorists, would not satisfy some people who are after blood, no matter what.
And then, the Magistrate judge was thrashed because she ‘has a record’ of being aboriginal and ‘lenient’.
Finally, the Australian High Commissioner was summoned to the Indian Ministry of Foreign Affairs with “Please explain’ message.
No professional government should intentionally cause international embarassement.
At the same time people charged with supporting Tamil Tigers financially have been granted bail in Melbourne but because they are not Muslim, so that’s OK;
Dear thordaddy and all alike: your concern about national security is very selective. Has it got anything to do with racial/religious prejudice?
Dr. Haneef is a registrar which involves 24 hours medical duties. He would be a super giant to find a spare time for any other activities. And if he were a jihadist he would be very eager to admit it.
But I understand that in the name of national security we should be very watchful; alarmed and alert; particularly prior to the election. I suggest to lock up all the nurses, doctors and patients Dr. Haneef had been dealing with and get them all deported so we all could feel safe.
Jul 19th, 2007
red crab
im really getting worried there seem to be terrorists every where in oz at the moment .
they live next door they hide under bridges and behind trees.
thats what the govt wants you to belive.
question to the educated just how manny act of terrorism has been inflicted on australian soil.
correct me if im wrong there has been only one so far when someone tried to blow up whitlam in sydney and that failed .
as we all concentrate on this one man who has been acused of some trumped up charge.
we are not looking at the amount of ppl killed on the roads the ppl who have been murderd the industrial deaths, drugs overdoses, the 600 ppl to loose there jobs from the motor industry etc etc.
if this man was a real threat i dout that we would have herd anything about it.
he would have just been delt with quietly by the govt .
its all to put us on edge and divert attention away from other maters.
to me its the same as in past centurys when the rullers of the time impailed there victems heads on a pole for all to see.
it was used to keep the ppl under controle with the fear of that could also happen to you if you say the wrong thing.
Jul 19th, 2007
philip travers
Ah! Its good to be back to the slog after knocking down a old shed in a couple of days.I felt I was a terrorist doing it,because it may of been very important once.I notice Andrews and others have the doctor in chat rooms and talking about babies.I thought one of the wisest comments on all this came from Premier Beattie,who is hosting, the man in the jail system.How odd it is he worked in a hospital,and we dont know as yet how many serious medical problems he worked on..which could of been life or death! Somehow that is unworthy as evidence of character,and talking to second cousins about this and that, is.. um… planning to be really part of a event! Many people I know said as opinion… Howard should be shot,over various issues,and yet, these people hot under the collar and often,very often…. not medical doctors, havent had the baked beans brigade knock on their doors and showing them their ID.Do I have to say that I have muttered these things myself loudly when the man goes on about the privilege of being prime minister.!?The love affair is over for Howard..wether he returns again or not..aspects of all this Haneef thing are entirely political..the war against Terror would have to be the laziest use of English that has come out of a American Presidents mouth.Looking up Haneef,to try to find its meaning shot up Yankee,Janke which is dutch for John.google.Yahoo came up with thinking its a New Zealand name, and I am none-the-wiser ..and that is what the Federal government wants us to stay. Until Rupert takes over Dow and replaces the Bancrofts. Penny for your thoughts Uncle Rupert!
Jul 19th, 2007
ken
Lotharsson – the point is that its all nice for people to froth and fume over what has essentially been a normal part of the governance process. They do it becasue they of course can’t contribute anything else, and it plays to whatever small consituency they have.
What will happen, as has always happened, is that the people will throw a gvoenrment out as the “had enoughy meter” exceeds the its “still ok meter”. This will probably occur federally this year, will occur next time in NSW, and on it goes.
While the argument will be that this is the worst ever and the current mob have taken things to new lows etc etc, to a large degree the avialability of information is so significantly enahnced than in history makes things much more transparent than in the past. I can hear the usual suspecst here sneering, but of course they don’t know, how much central gvoenrment was a law unto themsleves 30 yeasr ago.
Just look at the treatment of whisltblowers, certainly in the past and even moer recnetly to see the full force of government destruction of an individual in aciton, not to mention the multitude of troublesome bodies buried in the past (figurativekly speaking) way before the openness of media and information we have now.
While Dr Haneef’s treatmetnt may appear pretty bad its hardly new.
As is often the case red crab is closer to the money than most.
Jul 19th, 2007
John Harris
Lotharsson
It’s the old “red under the bed” trick.
are any of John Howard, Kevin Andrews, Phillip Ruddock a reincarnation of Senator Joe McCarthy??
John
Jul 19th, 2007
thordaddy
zen,
You say,
What’s more professional than nabbing a potential jihadist collaborator or perhaps sleeper?
This is why taking the legal tradition of “innocent until proven guilty” out of the judicial sphere where it belongs and applying it to areas where it can be destructive is not good for society. The idea that Dr. Haneef might be a jihadist sympathizer or maybe a sleeper isn’t even allowed to be entertained by those that hold “innocent until proven guilty” as some kind of fundmental right. In fact, you erroneously claimed that I called Dr. Haneef “a jihadist” implying that such a private judgement made by a free and soveriegn people was beyond acceptability. Your stance requires you to take the position that Dr. Haneef is a completely innocent persecuted Muslim and his sending a SIM card to a jihadist relative means absolutely nothing.
Only the most foolish and suicidal government would take your stance especially if they had any kind of grasp of recent history.
BTW, abortion doctors are certainly in the business of killing. And so are those that practice euthanasia. So some doctors are really there to kill you and they probably have your blessing?
Jul 19th, 2007
Marilyn
Throdaddy, how the hell do you think Dr Haneef committed a terrorist attack in London or Glasgow when he was at work in Brisbane?
Answer me that then get back to us with some more of your delusions.
On the other hand the government did send soldiers to murder innocent Iraqis.
Jul 19th, 2007
Evil Pundit
Well said, Thordaddy.
Unfortunately, your continued good sense will probably end up with your words being censored from this blog, as mine have been.
Totalitarians cannot abide freedom of expression.
Jul 19th, 2007
scared stiff
thordaddy
The presumption of innocence is a fundamental right, and a matter of simple fairness. Who is this “sovereign people” you talk about? The royal we of the sovereign despot forced to submit to the magna carta in the most fundamental act of British justice?
Jul 19th, 2007
zen
thordaddy: Just a grasp of recent history:
27 crew members of the Pong Su were released by the Court, only to be scooped up by the Immigration Dept. and taken to the Baxter detention hellhole. There they languished in secret in a formerly, unused compound. No one was aware of their presence until one day, after another public outcry and the policy changes in Baxter which allowed detainees to be escorted on foot between the compounds instead of locked vans, a detainee attention was called to this never used compound by cries and eyes peering over that compound walls.
These crew members were fathers and sons who desperately wanted to go home to their families. They were not seeking asylum. They were never suspected of any links with terrorism and the Courts had found them not guilty of ANY crime. Under another public pressure, 13 weeks after the Court’s decision they were finally allowed to leave our ‘hospitable’ land.
I have a nasty feeling that there are some people who would love to get rid this country of courts and lawyers. Beaut!
http://www.abc.net.au/pm/content/2004/s1060109.htm
Jul 19th, 2007
paul walter
Ken tells us we are “fuming” over what he regards as having been (hence is?) “a normal part of the governance process”.
Sorry Ken, can’t actually remember the sort of incident involving Dr Haneef, a hapless person dragged off the streets and abducted to some dungeon on a rumour and then when ordered to be released by a magistrate discovers the magistrate’s decison overruled by a religious boor operating off a hidden agenda, being regarded by normal Australians as “normal governance”
Unless you consider ” normal governance” as something typified by something like the Mulrunji incident. I suppose what your notion of “normal governance” is, is something you’ve acquired studying the history of places like Fascist Italy or Stalinist Poland ?
BTW this “good governance”- this exists EXCLUSIVELY to overrule sound principles like accountability of government, foi, separation of powers, presumption of innocence and habeus corpus?
Or, like its close cousin “policy”, is it also there to prevent scrutiny of lazy, ignorant and incompetent political adminstrations.
If so, the sooner such a pernicous evil is reined in the better for all of us and coming generations.
Jul 19th, 2007
jan 1
thordaddy:
“Innocent until proven guilty” a fundamental right? Of course it is! Correct me if I am wrong (sure you will). I have not seen any reports that state that, at the time that Dr. Haneef handed over his simcard to his ’second cousin’ that this same cousin was, at that time, ‘known’ to be a terrorist or anything else for that matter. I hear that Haneef’s wife’s cousin is on the way here to visit him. Is she going to get into the country, being that she obviously has an association with the doctor, or will our government panic again and and judge her as well? If our government is going to overide the judicial system, does this not cause you some concern? If legal representatives cannot adequately prepare a defence because they are not supplied with the information on which they can base a defence does this not also concern you? Anti Terrorism Laws…does it not occur to you that there is a very wide margin for these laws to apply (in name) to other people who may have no interest in blowing up anything? At the end of the day Howard and his buddies are wanting to ‘rule’ the people, not govern them! Good on Mr. Russo for defending this man’s rights, and good on Stephen Keim for having the balls, and the integrity to speak out to the press, and good on Andrew for speaking his mind also! Should be more of them!
Jul 20th, 2007
Marilyn
A report in the Australian today says that the AFP changed vital details to over egg the pudding against Haneef.
That is perjury to a magistrates court and the cops should be charged.
We have to remember the feds. have shocking form for this sort of thing.
Jul 20th, 2007
red crab
ihave read every comment here sat and thought about the situation in depth.
i think that with the amount of highly trained ppl with not to mutch to do they have been given the chance to see how good they are (like a military exasise ).when the situation in the u.k. had a perceved conection with australia and the window of opitunity was taken.
i think that they picked one man as the situation will be easy to control (media etc)
i also think that the doc will walk away with a very big compensation payment .
in the mean time it would seam as though howard is trying to do a deal with the u.s. to take nuclear wast in oz any compensation to someone would be small change .
Jul 20th, 2007
Aron
Reports in the Age also suggest that the SIM card in question was not found in the burning jeep, but in the house of the cousin who is accused of not passing on information in the UK – so he is associated with a person associated.
I also note the differences between the interview and the evidence provided to the minister. Surely the head of the AFP should resign? Andrews is safe, of course – after all, he didn’t know and wasn’t told, didn’t look and didn’t see, as usual.
What a stinking mess, and what a surprise!
This ’secret evidence’ better be damn good, but I suspect, until I see it, that is much like the WMD secret evidence – a product of wishfull thinking.
Jul 20th, 2007
zen
Anyone who does not believe in the fundamental principle of ‘innocent until proven guilty’ should seek a permanent residence in .. Zimbabwe.
By the way, why did we spend so much money to ‘investigate’ dr. Haneef character overseas (India)and we came back with the crap that his SIM card had been found in the car explosion whereas the report from England says that his SIM card was found on dr. Haneef’s cousin after he had been arrested. What does ‘contempt of court’really mean? Is it when false info is presented to the court or when some details of an interview are ‘leaked’ to the public?
Jul 20th, 2007
John Tracey
The SIM card story is on T.V. news too.
The secret evidence is an empty folder waiting in the hope that someone will find something from the British investigation to put into it.
The earliest stages of an investigation are very speculative, not ruling out anything. They don’t yet know the details and are trying to find them out. Evidence from this early stage is necessarilly speculative. But it is none the less secret evidence and is being used as the vanguard for the governments electon stunt of trying to make everyone scared and dismantling the structures that protect our limited legal rights.
As Red Crab has pointed out, the outcome of appeals etc. even with compensation is of little financial concern and of no political concern because the government’s key timeframe is between now and the election. What happens after that is not important.
The trouble is our legal culture is changing rapidly in this process, allthough Dr. Haneef’s situation has provoked a defensive backlash amongst lawyers, in particular their support for Steven Keim. Lawyers are indeed a powerful political class.
But more importantly these cultural changes are affecting everyone, we are becoming used to the devolution of civil rights and the so called checks and balances which were previously proclaimed as the cornerstone of our liberal democracy. (see also “The politicisation of the police and the policification of politics, a Queenslandish perspective” http://www.deadroo.com/index.php/the-politicisation-of-the-police-and-the-policification-of-politics-a-queenslandish-perspective/
The sad truth is many Australians will be motivated to vote for the coalition as a result of this fear and hysteria. The hope is that more people will realise what has happened in Australia since the government got control of the senate has undermined Australia’s right to call itself a democracy.
Jul 20th, 2007
ken
Paul – perhasp it was not clear, but my comments were realted to the principles espoused by ealrier posters that were bemoaning the trashing or peoples rights, riding roughshod over individuals etc, not the specifcs of the Hanneef case – dig. The refernce to “normal governance” in other words implies thats what, in my first hand experience, all governments do and have done – until such time as enough people get sick enoguh of it to toss them out. Ever heard of Arantz, Camden nurses, Darwin Hospital?, I’m sure wherever you come from thres also plenty of examples. theres plenty that never see the light of day.
I am struggling to find anywhere I said it was good perhasp you can help me.
Jul 20th, 2007
Lotharsson
red crab,
Check out this article (PDF) for an assessment of the historical terrorism risk to individuals in the US compared to some other common risks. Some highlights:
- in most years, worldwide terrorist deaths are at about the same level as the number of Americans who drown in bathtubs.
- the number of Americans killed by international terrorism since the late ‘60s is about the same as the number killed in the same period by lightning, accidents caused by deer, or allergic reaction to peanuts. It wouldn’t surprise me if Australians were even less vulnerable to international terrorism than to lightning.
- it’s safer to take a single US domestic flight (even counting those killed on 9/11) than to drive just 12 miles on one of America’s safest roads.
Which suggests that a debate over just how much civil liberty should be surrendered to avoid this serious menace is well worth having. And what the heck are we going to do about those terrifying peanuts, roads and lightning storms? Surely we should take away even more civil liberties in response?!
Jul 20th, 2007
thordaddy
zen,
To claim that “innocent until proven guilty” is a fundamental right shows why the opinions of progressives in matters of importance should be both mocked and examined carefully.
Think of the implications of taking a fine legal tradition and expanding its scope to the whole of society. How could any society function properly? All police action would immediately cease because all potential trangressors are “innocent until proven guilty.” In practical terms this means that no police action could ever start in the land of innocent people. What utopianism.
To claim that the guy I just saw mug the old lady is “innocent” until he is convicted by the court of law is absurd. Conversely, to say such a bum is only “guilty” after he is convicted is incomprehensible nonsense as I am witness to his guilt and am not required the process of conviction to be entitled to that insight.
Dr.Haneef is entitled to a fair and just judicial process. He is not entitled to a private opinion that only presumes his “innocence.” I no more have to think Dr. Haneef innocent than you have to believe your government nabbed a potential sleeper. Ironically, you don’t even apply your standard of “innocent until proven guilty” to your own government and fellow Australians in this case.
You are required to assert his innocence and tear down all those that believe him to be guilty because of ideology alone. I have no wish to see an innocent man pillard and persecuted for nothing when there are undoubtedly those that aren’t innocent lurking amongst us. But then again, you don’t even believe that because your ideology won’t let.
Jul 20th, 2007
jan 1
to red crab (67)
i think you’ve pretty much hit the nail on the head with that post. Sadly though, how much money could ever compensate for what has been done to this man if it should be decided ‘by the courts’ that he is indeed innocent? After all, there will be plenty of people to support him, but there will also be those who will judge him irrespective of the evidence. And yes, look at what was going on in government while this little charade was playing out! i have to really wonder why our elected government obviously thinks that we are all mushrooms! I don’t blame the feds because i believe that they were doing exactly as they were told to do.
Jul 20th, 2007
Graham Bell
Andrew Bartlett:
How soon could you and your fellow parliamentians – of all parties and persuasions – ride rough-shod over the prime minister, the cabinet, the party whips, the party apparatchiks, the commentariat and other obstacles …. and assemble yourselves for a special session of Parliament to discuss and pass new workable and fair laws actually aimed spcifically at terrorists?
b.t.w. Sorry I didn’t hear about your visit to Rockhampton until just now. [Own steam-driven computer finally died; using someone elses …such is life}.
Jul 20th, 2007
scared stiff
I was wondering what other people on this forum judge to be the numbers of people distrubed by these developments. Reading some of the posts I fear an incipient mass movement of the right. Also I was in Melb cbd today and camoflaged helicopters were flying overhead. Did anyone else see them. I found it chilling. I certainly don’t want alarm anyone but can anyone allay my fears?
Jul 20th, 2007
Lotharsson
thordaddy wrote:
Wow, what a marvelous strawman you have constructed! And how ridiculous it makes progressives look!
Sarcasm over.
To answer your question, society would function in the same way that societies with that fundamental presumption have functioned for hundreds of years – quite well in general, and still happily allowing for all manner of police investigations. Your comment reveals a fundamental misunderstanding of what “innocent until proven guilty” means – and just like you stated, your opinion should be both mocked and examined carefully.
You are confusing the common meaning of words with the legal meaning of words.
One is entitled to presumption of innocence under the law until proven guilty under the law. This is different from the fact that a person may or may not be guilty of any particular allegation.
You may assert that you saw a guy mug an old lady and therefore he is guilty. You may even be correct in that assertion, but it is also possible that you are mistaken, or even that you are deliberately lying. This is why the law treats your assertion as an allegation to be investigated through due process (and why progressives have an interest in making sure due process is maintained, because presumption of guilt on allegation is very easily abused by people making false allegations.) Police may arrest someone on the basis of the allegation, charges can be laid, and the court will hold a trial to determine whether the facts support the allegation. At the conclusion of the trial a verdict will be pronounced – either not guilty under the law or guilty under the law. The latter requires that the allegation be proved beyond a reasonable doubt.
Note there is no such verdict as innocent under the law, as courts do not establish this beyond a reasonable doubt.
How does this correspond to the common meaning of the words?
An innocent person (in fact, i.e. in the common meaning of the word) can expect to be found not guilty under the law (except in miscarriages of justice).
A guilty person (in fact, i.e. in common usage of the word) might be found not guilty under law if the allegations cannot be proven to a high enough standard, or guilty under the law if they can.
Now when one says “innocent until proven guilty”, it almost always means “innocent under the law until proven guilty under the law”, aka “presumption of innocence”. This meaning was established by context in the Senator’s post to which these comments are attached.
Your entire post is a beautiful piece of neo-absurdist work resting entirely on deliberately presuming the common meaning of the words instead of the legal definition. The latter is clearly more appropriate in this context and I doubt many readers other than yourself took it as the former.
This is a marked change from your comment #44 where you demonstrate that you know that it is a foundation legal right. From that point on you seem to treat every mention of “innocent until guilty” as NOT being a reference to that legal tradition. (Is someone impersonating you or did it merely suit your argument to mis-read other comments?) I had a quick look at other posters using that term and I did not see anyone asserting Haneef is innocent in the common sense, only that he should be treated as innocent in the legal sense.
And I definitely don’t see anyone saying you can’t run a police force because you presume everyone is innocent in fact and therefore must be innocent under the law – well, no-one except you.
Jul 20th, 2007
thordaddy
Lotharsson,
To say that “innocent until proven guilty” is a “fundamental right” is to say that all persons are entitled to a presumption of innocence by all other persons. This is nonsense.
A person is entitled to a presumption of innocence only within the judicial process. Presumption of innocence is not a fundamental right, rather, it’s a solid legal tradition that insures citizens get a fair and just process.
Progressives such as yourself, zen and Mr. Bartlett are distorting this legal tradition and implying that the Australian people and those in charge of executing our laws must view Dr. Haneef as completely innocent and his activities as inconsequential. You are making a claim on others that has no basis in law or tradition. You are conveying the idea that those that think Dr. Haneef to be guilty of jihadist collaboration are undermining his “fundamental rights” and distorting the judicial process. This is false.
Jul 21st, 2007
Rev Gwilym Henry-Edwards
I, with many of my friends, would very much like to send a message of support to Dr Haneef, his friends and his legal team.
Do you have any suggestions on how this might be done.
Jul 21st, 2007
Andrew Bartlett
Rev Henry-Edwards: Check out this blog – Free Dr Haneef – if you want to leave a message of support. Alternatively, I’ve been in touch with his legal team if you want to leave a message with me.
Thordaddy, you really should stop verballing people – it doesn’t make for any sort of coherent argument when you keep misrepresenting what everyone else is saying. Mind you, it now appears the Australian government verballed Dr Haneef in open court, so it’s probably not a surprise that you support their approach.
It’s really very simple. As you – and everyone else – is saying, the presumption of innocence is a fundamental legal principle. Dr Haneef is being denied that fundamental legal principle, with the atcive facilitation and encouragement of the Australian government. I believe this is a bad thing, as I hope do most Australians. You may not think it is a bad thing for this fundamental legal principle to be torn up, in which case it would be better if you just admitted it, rather than misrepresentinig what everyone else is saying instead.
Jul 21st, 2007
John Tracey
Thordaddy,
you are right about the presumption of innocence as a legal thing.
When, for example a magistrate is hearing a bail matter, they do not take the presumption of innocence into account (because it is presumed) when they are deciding on bail. They take into account the potential (not actual) threat to the community and to the liklihood of the defendent fleeing.
In Dr. Haneef’s case a magistrate was presented with no evidence from anyone that he was a threat to the community or be likely to run.
There was no evidence presented to the court that the doctor had ever had an evil thought in his life.
It is these reasons that the magistrate allowed Hannef bail – nothing to do with the presumption of innocence.
However, despite being authorised as safe by the court, the Dr. is being punished in exactly the same way as Brendon Abbot – the notorious postcard bandit, convicted and sentenced and sensationally labelled as amongst the worst of the worst by Qld. authorities. This is where the presumption of innocence is relevent because Haneef is not even treated as an ordinary remand prisoner but is indeed being punished for something that he is supposed to be presumed innocent for at this stage.
Ordinary remand prisoners are (theoretically) not in gaol as punishment but simply safe holding until court.
Given the recent news on his sim card I think it is safe to assume he is innocent of anything thus far presented to the magistrates court.
Jul 21st, 2007
thordaddy
Mr. Bartlett,
Who in your judicial system has openly declared Dr. Haneef’s guilt?
John Tracey,
If the magistrate heard as you say, why did he not issue a $1 surety to signify Dr. Haneef’s complete innocence based on no evidence?
Jul 21st, 2007
Andrew Bartlett
Thordaddy says:
Nobody has Mr Thordaddy, that’s the whole point. I don’t know why you find this so difficult, but it really is quite simple.
Dr Haneef is in jail, despite not being found guilty by our judicial system, and a finding by the judicial system that he is entitled under law to be free in the community while his charges are considered by a jury and court.
It is our government, putting itself in the place of the judicial system, which has declared him guilty of ‘bad character’ – without a charge, trial or even presentation of evidence. The sentence for this is indefinite detention at the whim of the government, followed by deportation even if he is found not guilty by a jury/court.
You might happy with that sort of stuff in the USA (although I know many citizens of that country do not support such perversions of justice and democracy), but I believe it is an abomination that such things continue to happen in Australia.
(of course, this is far from the first occasion people who are innocent before the law have been locked up for years without charge or trial in Australia, but it is one of the most public and blatant examples)
Jul 21st, 2007
John Tracey
thordaddy,
the magistrate was a she, not a he.
Your suggestion of a $1 surety seems quite absurd to me but I will answer as if the question were more than just cheap negativity.
At the first magistrates hearing of the charge and bail hearing the question of guilt or innocence is not a consideration. It is an administrative procedure to begin the court process and deal with, as I said before, if the defendent poses a risk of any sort.
But since you seem to have a basic legal understanding of the notion of presumption of innocence, I am sure you were allready aware of this basic legal procedure.
and, although you asked the question of the senator, Kevin Andrews has indeed pronounced, to the media Dr. Haneef as being guilty and ordered his deportation as a result of his guilt.
Now Andrews isn’t really part of the legal system I know, but that is kind of the point.
Jul 21st, 2007
Andrew Bartlett
Further to Mr Thordaddy’s query about the $1 surety for bail:
As with John Tracey, I will assume it is a serious question, rather a further display of your inability (or unwillingness) to comprehend the most basic facts about this issue.
The $10 000 surety that was required by the Magistrate was in line with the request made by Dr Haneef’s legal team in the court. Although they opposed bail in the first place, once the Magistrate decided it was warranted, the government’s team requested $100 000 surety. The Magistrate specifically decided to go with the lowest option.
Jul 21st, 2007
scared stiff
Thordaddy
I am tired of being polite. You are a creature of no integrity. I resort to this ad hominen point
1. because it is patently obvious
2. because you have no compunction in engaging in a particularly malicious disengenuous not say slanderous kind of sub judice.
and
3. because you arrogantly stick your fascist snout in the affairs of a truly sovereign people.
Jul 21st, 2007
zen
thordaddy,
You must be the only person in the whole world who calls me ‘progressive’. I am thrilled to bits.
It does not take an Einstein to wonder how on earth an expired (September 2006) tiny piece of plastic could survive a bomb blast.
If you really think that any government (Mugabe included) would enjoy ‘presumption of innocence’ think of this:
Innocent until found guilty applies to the people we usually know very little about and their alleged actions are in doubt.
As for the government, we have known this one very well for 11 years. Howard is hated in his own electorate to the extent that his cronies (democratic values lovers) are already thinking to find him a safe seat to cover his backside.
According to a prosecutor working in the NSW courts “There’d be more kids suffering from violence, sexual abuse, addiction and psychological abuse in the Prime Minister’s electorate of Bennelong than in the entire Northern Territory.” (Quoted from ‘The Weekend Australian’)
Our national wizard of Oz got on his broomstick with plenty of cash and flew to the Middle East to ‘defend Christianity’.
When Richard Plantagenet became the king of England he borrowed heaps of money and rushed for a crusade to ‘defend Christianity’ in the Middle East. He did not get to the Holy Land, though. He came back to England from his ‘noble adventure’ totally peniless and the English taxpayer had to bail him out (for heaps of money) from an Austrian prison.
Richard and his equally infamous brother John supressed the people of England.
But their terrible reign led to actually a very good outcome. John was forced to sign Magna Carta in 1215 under a terrible pressure from English barons influenced by the continental barons of France. This important historic document of civil liberties has been working in the Westminster system until very recently.
History does repeat, even if it does not, it does.
Any guess why don’t we teach history in Australia?
Jul 21st, 2007
Mandy Singh
Andrew,
I must say that your actions and writings over this Haneef issue have certainly been commendable. You’ve won a supporter here.
Mandy
Jul 21st, 2007
zen
thordaddy,
You must be the only person in the whole world who called me ‘progressive’.
I am thrilled to bits.
Basic education makes one wonder how a little tiny piece of plastic could survive a bomb blast.
Presumption of innocence applies to people we usually know very little about and their alleged actions are in doubt. But we have known our government for 11 years. Howard is hated in his electorate so much so that his ‘democratic values loving cronies’ are already looking for a safe seat for him in case he loses votes in his own seat. According to a prosecutor from NSW courts “There’d be more kids suffereing from violence, sexual abuse and addiction in the Prime Minister’s electorate of Bennelong than in the entire Northern Territory.” (Weekend Australian)
Our Wizard of Oz got on his broomstick and, with heaps of cash, flew to foreign lands to ‘defend Christianity’ in the Middle East.
It reminds me of Richard Platagenet who, as soon as he became the king of England borrowed heaps of money and rushed for a crusade to the Middle East to ‘defend Christianity’. He didn’t get to the Holy Land, though. He came to England peniless and the taxpayer had to bail him out from an Austrian prison.
After years of suppression and injustice, his equally infamous successor, (Richard’s brother) John, was forced to sign a very important historic document of civil liberties called Magna Carta in 1215. This document has been working very well in the Westminster System until very, very recently.
Any guess why we do not teach history in Australia???
Jul 21st, 2007
scared stiff
zen,
I have to take issue with you. It is not a matter of deciding between the government and Dr Haneef on the matter of Dr Haneef’s guilt.
On the contrary it is a matter of deciding between the Australian judiciary and Dr Haneef’s common law rights against the lawless act of Mr Andrews, who seeks to introduce the Stalinist practice of admistrative detention into Australian jurisprudence. You are quite right to regard this as a violation of the magna carta-though it feels riduculous having to say so-who would have thought barbarities that predate the middle ages could be visited upon a civilized and democratic nation. The question of Dr Haneef’s guilt or otherwise is precisely what is not at issue but rather his fundamental right to a fair trial. It is not our business, nor thordaddy’s nor Mr Andrews, nor anyone else to decide Dr Haneef’s guilt. It is none of our business. It is the business of the court and strictly speaking we should all refain from speculation-though if we were to take the grounds, as tendered to the magistrate, on which the government sought to charge him as any indication it would seem the evidence against him is frighteningly meagre. To comment on a trial is sub judice and in this country unlike the USA, such behaviour was once treated as the crime it is-it is instructive in this regard that those government’s statements that could be sub judice came from anonymous sources within the government-they were leaked, as we say in the brutal barbarized version of English we have learned to speak in recent times. To question the charectar of a man who has merely be charged of an offense is not fair, indeed it is slander. We all might indulge in this sought of thing from time to time, but when a government does it, and backs it with official sanction, we are right to regard that government of acting with scant regard to the law. My irritation with thordaddy is that he is evidently incapable of distinguishing the rule of law from manifest tyranny.
Jul 21st, 2007
Lotharsson
Thordaddy wrote:
It’s so easy to show how others are full of nonsense when you deliberately construct strawmen that don’t reflect their position. It’s also one way to rapidly look really stupid. Congratulations, you achieved that!
So on the off chance you’re not trolling and you really don’t get it despite having it explained a dozen times to you, let me try this r e a l s l o w for you one last time.
As explained previously the statement “innocent until found guilty”, or its equivalent “presumption of innocence” everywhere and always, except in your fantasies describes a legal right.
That means when someone states that “innocent until proven guilty” is a “fundamental right”, it is implied that it is a fundamental legal right. It specifically does NOT imply that such a right extends beyond the legal system. It specifically does NOT imply that all citizens must believe and act as if the accused is innocent in fact (by, for example, dismissing any allegations made without investigation). It DOES imply that allegations made must be investigated, but the accused is not to be treated as guilty in fact until found guilty by a court.
Care to restate any of your comments in the light of new evidence?
Your assertion is unsupported – perhaps because it is entirely false. This statement could probably be read as slanderous.
I don’t see any point arguing about your unfounded assertions because you haven’t comprehended the last comment I made taking your false allegations to task (#77), and others have already taken you to the woodshed on your latest comments.
If you had any sense of irony, you might note that there is a potential that false allegations may yet turn out to be a feature of this case, and new or further clarified evidence may also play a role. You are doing exactly the same thing here that is feared may be happening to Haneef amongst those who care to defend rule of law – making false allegations (and you’re judging the accused as guilty).
I doubt this is a case of meta-commentary performance art as your attacks on viewpoints presented here are nowhere near sophisticated enough to suggest that you have that capability.
Jul 21st, 2007
Marilyn
Well the boy is going to be summarily deported as if he has done something wrong because the feds made another cock up. I bet he will be glad to see the back end of Australia and I hope the media will be waiting when he gets home so he can tell his story.
Hedley Thomas gets one of the few bouquets in this whole ugly mess.
But guess what folks? If ASIO had been running this operation it could have been you.
Andrew TAMPA and kids not thrown have come back to bite if you look in the AGE today. Not a pretty story.
Jul 22nd, 2007
thordaddy
Mr. Bartlett, Lotharsson, zen and John Tracey,
I think it has been readily established that no one within the Australian judicial system has violated Dr. Haneef’s “presumption of innocence.” Therefore, the notion that his fundamental right to being “innocent until proven guilty” has no merit in this discussion. It’s a red herring and non-sequiter.
The question is whether his revoked visa and subsequent detention and/or deportation is allowable by law. I have yet to read a cogent argument that makes the claim that the Australian people are prohibited from deporting noncitizens for whatever reason they deem necessary especially if that someone has a potential link to jihadists.
In fact, it seems to me that under your system it is the fundamental right of the Australian people to keep or dismiss any noncitizen for whatever reason they so desire. To disagree with such a statement is tantamount to saying that the Australian people have no sovereignty and that your judiciary system may run rampant over the fundamental right of the Australian people to decide who may stay or be deported. Is this your stance, fellas
Jul 22nd, 2007
John Tracey
Thordaddy,
I don’t understand your motivation for saying these things, you seem to be able to string coherent sentences together but there is a total absense of logic underlying them, just a somewht shallow argumentative desire to draw flac.
Either that or you are a fascist, for your assertion that the state has the right to do anything it wants as long as the forms are filled in properly,(including the attempted genocide of a race of people, which you may deny if you are indeed a fascist.) is indeed fascism.
However, way back then the Nurenburg trials and the united nations put a spanner in the philosophy of unrestricted activity of the state. They were the good old days. Just as well John Howard and old Dubya still have a respect for tradition.
Now, I know the principles of justice, fairness and accountability, the principles of this thing that some like to call “democracy” is just an international Jewish conspiracy to pollute nice white nations like Australia.
Sorry, out of date. Its Muslims upsetting white supremacy now.
white supremacy is our sovereign right, to decide who comes to this country and who we kick out and the circumstances by which we kick them out!
The trouble with these bleeding heart liberals is they have been corrupted by the poison of the Jews, Africans, Asians and Muslims (there are no Aborigines). They are just being used in an international conspiracy to undermine our culture and way of life with these bleating appeals to weaknesses such as democracy, justice and accountability.
Yes, Thordaddy. I can see where you are coming from now.
You know why I don’t like going overseas?
Foreigners everywhere!
Thats why I like Australia.
Jul 22nd, 2007
CORAL
I agree with Thordaddy, pale, PC Police and Evil Pundit. My apologies to anyone else I may have missed in the long list of posts.
Many of you are totally lacking in any kind of common sense.
Due process needs to be applied as soon as possible, but we DO NOT let a suspected terrorist out of custody in the meantime.
I was somewhat upset to learn that the high school teacher who doubles as a bombmaker is still on the loose after more than a year, without a trial of any kind occurring.
Jul 22nd, 2007
Lotharsson
Thordaddy,
Let’s get some simple things straight up front, since you don’t appear to understand nuance.
Agreed.
That is a good question, but based on what is currently known, most people (myself included) believe Kevin Andrews was acting within his powers as minister under the law.
That may be because no-one I can recall has even attempted to make that argument. Care to back up your strawman with a quote?
This is where you go off the rails again, constructing a strawman and then shrieking about the danger it poses. No-one is arguing (except in your fantasies again) that the judiciary gets to “run rampant” and decide who stays and who gets deported to the exclusion of all else.
Furthermore, as the law currently stands the Australian people have little to nothing to do with it – we certainly don’t have any kind of “sovereignty” over the immigration process. Nobody has ever polled me asking what I want to do about a particular immigration case – maybe they’ve asked you? It is the >Australian state that has this power.
The process is delegated by the Australian state to the minister and a bunch of immigration department employees who make those decisions. That delegation occurs through legislation passed by our parliament. If we as members of the Australian public don’t like the way the immigration laws are structured or applied we can try to influence our politicians to change the law, but that’s about the total extent of our “sovereignty” in this matter.
You might recall that in our particular form of democracy, the judiciary has the role of handling court cases. Court cases can arise that challenge whether a given law itself is valid (for example, perhaps under the constitution, or even under international law or other treaties that the Australian state has signed up to). The judiciary may also handle cases that allege that a particular law was applied incorrectly in a particular case. Are you seriously arguing the judiciary has no right to answer any of these questions in the case of certain immigration laws?
I think one thing you’re probably reacting to is people suggesting that Andrews’ decision was not in the spirit of the (immigration) law even though it was within the letter, and that it appears on the available evidence to be a decision with the ulterior motive to usurp the role of the judiciary in the ongoing legal case when that case did not go the way the government hoped. Unfortunately this requires understanding nuance. If usurpation was the motive, then his decision certainly did undermine the presumption of innocence because it took the practical outcome of the case for Haneef out of the court’s hands and said we’re going to treat him as if he’s guilty either way by deporting him.
Now this is certainly arguable – you can make the case that the two determinations (immigration law and criminal case) use different levels of confidence of guilt (they do) and that the immigration decision was independent of and completely uninfluenced by the bail decision. But the people arguing that aren’t necessarily claiming the law is invalid or Andrews doesn’t have the power to make the visa determination or that the judiciary can override that determination and keep Haneef in the country anyway – or any of the many other strawmen you’ve been describing. And frankly you’re not doing a very good job of arguing that case because you’re so obsessed with your strawmen.
The opposite case is also arguable – that Kevin Andrews’ actions, whilst being within his power under the law as the minister were intended to usurp the criminal case (and the presumption of innocence that goes along with it because that case wasn’t going the way the government hoped. This is particularly suggested by reading the article This is not a bad spy novel – it’s real life” in The Age today. The article has a lot of interesting information and questions. It points out that the Haneef prosecution could have been handled in secret under the (somewhat draconian) ASIO legislation, but the case was prosecuted in public. (Did the government influence the choice? Were they aiming to make a widely publicised national security scare? If that is the case, would they be motivated to usurp the legal process if it was descending into farce, thus making them look weak and ineffective on national security issues?) These are the kinds of questions that lead to suspicion that the minister may have had ulterior motives when applying his visa cancellation powers – as does the other articles in the news today suggesting the government is preparing to abort the trial and immediately deport Haneef.
Then there are also wider questions about whether the law itself is fair and proper, whether it has been applied properly in this case, whether it has been applied in the spirit that parliament intended (12 days detention before charge when it was anticipated in debate that “16 hours would probably be enough”), and whether there should be some review or appeal mechanism for decisions made by the minister. Other Aussies may also go further and ask whether Haneef got a “fair go”, or even whether Andrews’ actions have harmed our country because it makes hiring overseas doctors (who we’re reliant upon) much more difficult because they know they can be screwed over in similar circumstances. Others still ask about the related ASIO powers act and other police powers (including suggested expansions of their abilities to take a DNA sample to just about anyone they detain) which apply to citizens as well and ask whether they reflect our democratic ideals or does the lack of oversight open them up to exploitation and corruption. But I see little point in discussing such nuanced topics with you.
Jul 22nd, 2007
thordaddy
Lotharsson,
You have agreed that no one in the judiciary has declared Dr. Haneef guilty, therefore the legal tradition of “presumption of innocence” has been upheld. Let’s give two thumbs up for your enlightened system.
Now, the question is why people such as yourself, Mr. Bartlett, zen and John Tracey keep insisting that Dr. Haneef is “innocent until proven guilty?” Why?
I think the answer is clear. You are trying the expand the scope of the judiciary and are attempting to take a legal tradition and apply it to places where it doesn’t apply, namely, the executive, legislative and PRIVATE sphere.
Again, how has the process been corrupted in the case of Dr. Haneef? You cling to the notion of “innocent until proven guilty,” but it doesn’t seem to apply to anyone that has an inkling of Dr. Haneef’s guilt.
Jul 23rd, 2007
Lotharsson
Thordaddy wrote:
Your conclusion does not follow the statement of fact, except in the most narrow of possible interpretations.
As I said, this requires a tiny bit of nuance which isn’t getting through. Let’s try to make this a bit more concrete.
Imagine for example that you were traveling overseas and were unjustly accused of (say) engaging in paedophilia. The police begin their investigations, your passport is confiscated and your movements restricted to ensure you don’t flee justice. Meanwhile, somehow, the news gets out. While no-one in the judiciary pre-judges your guilt, someone else puts up many large posters prominently displayed all over town with your face and the word “paedophile” plastered all over it.
We can all agree that presumption of innocence has been upheld by the judiciary in this case. Thus by your logic you have no right to complain.
Further in this example, some upright citizens of the town decide that your physiology ought to be permanently modified to prevent any future possibility of paedophilia, and they ensure these modifications are carried out.
We can still agree that no-one on the judiciary has violated your legal right to the presumption of innocence. According to your logic you still have no right to complain.
Now if you complain of either form of treatment in this case, what exactly would you complain of? Would you complain merely of the facts of your treatment, or would you also complain that the reason for the treatment was
because people were short-cutting your legal due process and presuming you guilty and applying punitive measures?
If you fully and honestly answer this question there’s hope that you can reach a better understanding of where I’m coming from and why I’m not saying what you claim I am.
Given your steadfast commitment to putting words and even entire philosophies in my mouth (as evidenced by the rest of your most recent comment) I’m not sure you want to understand because your strawman would disappear. But if you do want to understand, please analyse this hypothetical and tell me how you would react and why.
Jul 23rd, 2007
thordaddy
Lotharsson,
I would first note to those accusing me that I am a father of two with one on the way and that there is not a shred of evidence to the accusation and you have not given any such evidence. You have merely provided an accusation.
This is not the case for Dr. Haneef. There is evidence that he at least had communications with potential jihadists and perhaps inadvertantly supplied one such jihadist with a SIM card.
If the executive decided to further investigate then what? They would, in my case, find nothing to substantiate the accusation being made. Again, this does not mirror Dr. Haneef’s sitaution as there is evidence of connection to jihadists. How strong that evidence is seems to be a matter of more investigation.
Now, if the Australian immigration department decided to revoke my visa and then deport me based on an accusation and no evidence, I would certainly be angry, but would have no recourse because I have no say in the immigration policy of the Australian people. I would simply chalk it up to the unfairness of life and the sovereign decision of the Australian people.
I certainly wouldn’t claim “innocent until proven guilty” as my “fundamental right” because such a stance is nonsensical.
Jul 23rd, 2007
ken
Why is Mr Lotharrson able to post 5,000 characetr posts
Jul 23rd, 2007
Andrew Bartlett
I was wondering that myswlf Ken (how, rather than why). Must found out more about how my own website works.
Jul 23rd, 2007
scared stiff
thordaddy
The issue is simply this: to officially condemn the man’s charectar, which is the reason given for revoking his visa, in advance of his trial, may predjudice his trial. It makes out that the govenrment simply “knows” he is a bad man. It would have been a very simple matter, as the magistrate was evidently satisfied to keep an eye of him without all this disgusting, politically motivated fanfare. In addition to this the judgement of the magistrate and hence the judiciary has been overridden. A law that is above the rule of law, above the judiciary that is constitutionally established to interpret it is a lawless law. Recent history abounds with these; the law in nazi Germany requiring jews to wear identifying badges on their clothing, the law to confiscate their property, the law depriving them of citizenship. Laws indeed may be passed in an emergency that limit civil liberties, and it is instructive to remember when we are assessing the necessity of this that this was Hitler’s justification. But even then I hardly think the present circumstances justify such measure as we now have-terrorism is really quite rare, and there is little evidence of organized terrorist networks, just copycat idiots with homemade bombs. In any case even if we must resign ourselves to these draconian laws we must ensure that they are adequately supervised by the judiciary. We were promised this would be the case. Now it appears the federal government has simply decided arbitrarily to suspend this safeguard. It makes no difference that Dr Haneef is not an Australian citizen. Indeed it makes it worse. Principles of fairness must be upheld in all cases in law. This is called equality before the law.
Jul 23rd, 2007
CORAL
My post #95:
Sorry guys. I made a booboo – mislead by some idiot on the TV.
The bombmaking high school teacher has been in custody all along. I think he has just been committed for trial.
thordaddy post #99:
So are you saying that Dr Haneef has fewer rights because he is not an Australian citizen?
Jul 23rd, 2007
red crab
i am sorry this mite be a bit of the plot but i have just watched michale moores new doco called sico .i would recomend it to any one .
it seems to me that our govt has been trying to take us down the american path
with regards to how they are treating this so called threat .
to keep us all afraid of the so called enamy with out the ppl ever asking why.
moores new movie will make the ppl who watch it think how stupid it is to follow the american system of almost anything.
we will be judged buy the
whole world !
not just america
buy the way
we !
treat
our!
so called security threats.
Jul 23rd, 2007
scared stiff
What if Dr Haneef is just a good Doctor who happens to have been raised in a family that along with a billion other people (not all members of the Real IRA!) who worship God in a slightly different way than that precsribed in the Book of Common prayer. Suppose the Age report is true and poor old Commisioner Keelty was given evidence to present that was already known to be false. Suppose that everyone in the know already knew this, but of god forbid, those stupid Australians who believe in some benighted nineteenth century concept of constitutionality that derives from some bum called Edmund Bourke, and another bleating heart called John Stuart Mill, are gonna let a terrer suspect out on bail-quick call the CIA, they’re all godless liberals down there, maybe we can’t rely on them to pollute their damned artesins basin with radioactive waste, so we can re-establish an energy monolpoly in the age of declining oil reserves. Who is making capital out of this stupid witchunt besides the clerical fascists of the middle east?
Jul 23rd, 2007
Lotharsson
Because I’m not smart enough to distill the argument down to 500 pithy but powerful characters :-( Help?!
Thordaddy,
It was not a real life accusation and I sincerely hope you didn’t take it that way. I was asking you to put yourself into a hypothetical situation where a possible injustice is carried out in order to make the scope of “presumption of innocence” clearer.
I note that, as ever, you failed to answer the questions I posed. Why do you think that is?
The hypothetical did not specify whether or not “the executive” decided to pursue further investigations. Nor did it specify whether or not those investigations turn up further evidence substantiating the allegations. Why? Because those are red herrings.
The questions posed that remained unanswered were the real crux of the issue:
* The determination of punishment is a judicial function. Anyone else doing so is usurping the role of the judiciary (and thus is violating the judicial presumption of innocence). And yes, that means that even though no-one in the judiciary violates presumption of innocence, other people’s actions can.
* The implementation of punishment is a state function. Anyone else doing so is usurping the role of the state in implementing judicially determined punishment (and by implication subverting the judicial determination of punishment, and hence violating the presumption of innocence).
In other words, taking the law into your own hands is violating presumption of innocence.
Are you arguing otherwise? Do you think punishment should be determined outside the judicial process, and that it can be meted out by anyone, not just those charged by the state with that role? If you need some real life examples, think back to practice of lynching in the Southern states of the USA. Were they OK or were they violations of presumption of innocence?
Right, this thread is about whether the minister’s use of his immigration power was a proper discharge of his immigration oversight responsibilities, or whether he was improperly using those responsibilities to circumvent presumption of innocence and presumptively apply a punishment (just as those upright citizens in my hypothetical presumptively applied a punishment).
The case can be argued either way, but there’s no need for the repetitive baseless smears you are propagating to argue your side – unless it’s a tacit admission that your arguments have no substance, an admission you appear to have been making in spades.
Jul 23rd, 2007
thordaddy
Lotharsson,
The privilege of noncitizens to work, live or play in Australia is not a “right,” therefore, to claim that Haneef’s revoked visa and possible deportation is “punishment” is pushing the “progressive” envelope once again.
We have waded through the non-argument that Dr. Haneef’s “presumption of innocence” was violated. It has not been violated because no one in the judiciary has claimed him guilty.
Your take is that the immigration officials have punished him and therefore usurped the power of the judiciary. This is false. The judiciary does not have power over immigration officials in the decisions regarding revoked visas or deportation of noncitizens. This power resides in the executive and legislative realms. Again, you are making accusations that require evidence. What is your evidence that immigration officials have usurped the judiciary and Dr. Haneef’s limited rights?
Coral,
I believe in the nation-state and so the answer to your question is that Dr. Haneef certainly DOES NOT have rights equivalent to Australian citizens anymore that Australians would have equivalent rights to Dr. Haneef in his homeland of India.
Jul 24th, 2007
Lotharsson
New and improved, shorter comments!
That argument does not hold water, as has been explained at length (and illustrated by the practice of lynching in the South of the USA). For your logic to be valid you would have to show that this ministerial decision was not (and given there’s no real evidence supporting your assertion in this case, that it could never be) used as a form of extra-judicial punishment. You have not shown this. That argument would require a level of trust in officials that is touching, and an imagination regarding possible forms of corrupt action that is refreshingly unacquainted with the realities of human nature.
The minister makes his decision based on secret evidence, not subject to review or oversight. He controls what the public hears. The surrounding sequence of events make it appear to citizen participants to be possibly usurping judicial decisions (and at second blush perhaps to be covering his government’s backside). The only evidence that the decision was properly motivated is his own assertion – just “trust me”.
It is valid in a democracy to note the real possibility of corrupt decision making here. Instead, you would rather restrict argument to the red herring of whether the minister and the judiciary have legal power over immigration decisions. (The answers are clear – yes and no – and we are in agreement so you can stop arguing that point.)
I am not questioning what the law is, I am questioning whether the law is as it should be, whether it was followed as it should be, and if not whether we should improve the process and perhaps incorporate some oversight to ensure abuse of power is minimized.
These questions support democratic goals even though you desperately want to prevent them being discussed. Enshrining power without oversight in human officials leads to more authoritarian and potentially more dictatorial or fascistic government – this seems to be what you want.
Jul 24th, 2007
zolly
i just wanted to say that this all is really stupid
firstly, didnt mr. haneef give the sim card 12 months ago, where his second cousin was not even a “suspected terrorist”.
Dr. Haneef didnt do anything, giving a sim card is nothing, you can buy sim cards for 4 dollars so the suspected terrorist could have bought it himself. and who knows what he used it for, maybe just to make family fone calls, is that illegal now to?
Dr. haneef has no criminal record, is a doctor, and a good citizen, the fact that he s a muslim and related to a suspect in the UK is why he is locked up. if the government thinks that we are blind, then theyr wrong.
they just need excuses to lok up or kill ppl. same wif the mamdu habib case, apperently they didnt evn no what was going on there. they jst want to humiliate muslims to the public so every1 thinks bad of them. if a muslim does a crime, then they say their muslim, but if any1 else from a different religion does a crime then theyr are just a person.
if they could they would kill all the muslims straight away.
John Howard shud get his own opinions straight, n stop following whateva his lord bush n companion blair does.
If a sim card is a ground of suspecting som1 from terorism then all of us would be the same. We buy fuel, which comes from iran, which the government thinks of as a terrorist country.
2nd largest oil exporter is iran n now they wanna attack that one too
Jul 24th, 2007
thordaddy
Lotharsson,
You say,
Here in the real world we need to make judgements based on certain realities and not ideological precepts. Because there was no punishment, only a signed bonded contract, nothing the ministerial did could be seen as “extra-judicial.” Secondly, Dr. Haneef is not entitled to stay in Australia if the ministerial decides he is not to stay. The ministerial has that power vested in him via the democratic process. And to characterize Dr. Haneef’s return to his home and family as “punishment” seems nonsensical when he could be facing life languishing in a jail. I think he should take the deal.
Now, I understand you have a cynical view for the executive branch of your government and an inexplicable affinity for the judicial. I also understand you have a soft spot for the innocent Muslim that we always catch while the other Muslim who is related to him is carrying out his religious duty; what is commonly known as jihad amongst Muslims.
But you must understand that your positions are equally suspect because terrorist jihadists are as much a reality as corrupt right-wing governments. The only problem I see is why it is that you distrust your own people so much while putting so much trust into Dr. Haneef? What happened to “innocent until proven guilty?”
Jul 24th, 2007
Lotharsson
Thordaddy,
You’re getting even more illogical if that is possible, and putting more words into my mouth. You make assertions and call them an argument. You dismiss actual arguments others make as not relevant by your mere assertion. You present false dichotomies and hordes of strawmen to attempt to bolster your position.
These are the actions of one who has no argument to make and who will not engage in honest debate. I am happy to let your record speak for itself.
Jul 24th, 2007
thordaddy
Lotharsson,
Your response is absolutely thick with irony. The accusations have been flying -like the idea that I’m pining for fascism- while you are protesting the right to “presumption of innocence.”
We have established that Dr. Haneef did not have is “presumption of innocence” violated by the judiciary.
We have also established that the ministerial has made decisions that are within his purview via the democratic process.
We have also established that noncitizens have no claim on the Australian people that immunes them from deportation for whatever reason the Australian people deem necessary.
And we have also established that being deported from a foreign land back to your home and family cannot be considered “punishment.”
Please elaborate on the illogic of the above assertions?
Jul 25th, 2007
Andrew Bartlett
Thordaddy wrote:
This is true, but no one has ever asserted anything else, so it hardly needs ‘establishing’.
No one has asserted that the Minister did not have the legal power to cancel a visa (although this may yet be overturned on appeal), but it is quite within everyone’s rights and obligations to assert that the relevant law is an unfair one, or that it has been applied in an unfair way which subverts the presumption of innocence.
No, “we” haven’t and you haven’t. “The Australian people” have nothing to do with the Minster’s decision, and even the grossly unfair Migration Act does not allow deportation for “whatever reason”.
No, “we” haven’t and you haven’t. Again, “the Australian people” have nothing to do with decisions to deport, let alone for “whatever reason”.
No, “we” haven’t and you haven’t. You clearly have not the faintest idea of how immensely damaging it can be and often has been for many people who have their visa cancelled – particularly when it is for character or security reasons. This is not to say that every deportation has been invalid, but please don’t try to make the ludicrous assertion that it does not punish many of the people affected.
Your understanding of Australia’s migration law is obviously fairly minimal, as is your grasp of logic. You have had enough goes at trolling on this thread. Please desist.
Jul 25th, 2007
Aron
The 60 minutes interview summed it up, really – ‘the only person to emerge from this mess with their dignity intact is Dr Haneef’. And you too AB, I must say.
Weren’t there some trolls on this post who were going to apologise for victimising an innocent man??
Jul 29th, 2007
red crab
the only good thing to come out of this mess is the fact that now the australian ppl know for a fact what the govt is capable of and can grab anyone off the street if they want.
be carful what you say you could be next.
is this what we really want.
Jul 30th, 2007
CORAL
Dr Haneef was deported for several good reasons. Some are easy to deduce and the rest will be the subject of national security.
Anyone closely watching Dr Haneef’s solicitor when he was answering media questions will be aware that his eyes looked all over the place for inspiration.
He couldn’t look anyone in the eye because he wasn’t being truthful about the government’s primary reasons for sending his client back – probably having been sworn to secrecy.
Secondary to this, I’m wondering how many people are aware that only 1 out of 3 doctors coming here from overseas are having their medical credentials thoroughly checked.
Australian citizens are at risk of medical misadventure and even death from this abominable situation. That is to say nothing of language barriers which could cause similar tragedies in some cases.
red crab:
The government has always been able to grab anyone off the street if they wanted to, but if they have nothing to hide, they have nothing to fear.
Jul 31st, 2007
Floss
Coral you have no more idea of Kevin Andrew’s reasons for revoking Dr Haneef’s visa than anyone else – unless the Minister has personally confided in you – while refusing to disclose his reasons to any one else?
Your assertion about Dr Haneef’s lawyer’s eye movements somehow being an indication of his client’s guilt or innocence is just utterly ridiculous.
I am though curious as to how you know “that only 1 out of 3 doctors coming here from overseas are having their medical credentials thoroughly checked.”
That’s a very serious claim to make and should be backed up by clear irrefutable evidence – and if you can’t provide that then you should admit it’s just another of your unsubstantiated personal opinion comments.
Jul 31st, 2007
togret
Coral, I know several overseas-trained doctors, who have had to go through rigorous checking of thier medical qualifications and challenging English tests even though they’d gained surgical qualifications after studying in Scotland – VERY high standards there, many Aussie doctors try and fail — so unless you have proof of this I think you’d better put a sock in it – you have gone too far.
Jul 31st, 2007
CORAL
The fact that only 1 in 3 overseas trained doctors has his/her medical credentials thoroughly checked was revealed in a television interview last week, by the people who do the checking!
I shall try to ignore all of the insulting comments made by poorly informed people with lesser knowledge and experience than myself. You can put a sock in it yourselves.
BTW they did say that 1 in 3 doctors WERE CHECKED. They didn’t say NO ONE was checked.
Aug 1st, 2007
togret
Coral- oh, right. “Someone” said this “in an interview on TV last week.” Uh huh. Well that settles that then.
Can you name the person who was interviewed? For what credential-checking body were they a spokesperson? Who did the interview? What did they ask? What channel? What date?
The unfortunate Mick Keelty said this week that Dr H’s SIM card was in the vicinity of the bombings in London and in Glasgow. This turns out to be untrue — again. Do you believe everything you see on TV?
It is unfortunate that instead of concentrating on greater scrutiny of all parts of the process of our efforts to keep our country safe, people see fit to take the easy way out and smear a whole group of people but can’t provide any actual substance to back up their smear. _IF_ there are unqualified doctors, or people connected with criminals (because that’s what terrorists are, but they are a small fraction of a larger group) coming unchecked into our country, then it is a scandal. I’m just wondering why you are the only one who knows about it, Coral. But then, you are the only one who knows lots of things.
Aug 1st, 2007
CORAL
togret:
Thanks for the compliment.
The person who said this was not only SOMEONE.
I suggest you turn on the TV and answer your own questions, instead of vilifying other posters with this load of crap.
Get your facts straight. Yes, there are plenty of scandalous things that go on, of which most people are probably unaware, including myself.
How do you think Queensland finished up with Dr Patel – killing patients and leaving others in worse shape than they started out?
Here’s another interesting snippet if you are actually paying any attention.
Registered Nurses are registered by a board, to which they are answerable, and by whom they may be struck off.
On the other hand, Assistants in Nursing, who make up the bulk of nurses in aged care centres (possibly the same in hospitals), are answerable to no board or body at all – even though they have most of the responsibility for the day to day care of patients.
Aug 2nd, 2007
Anonymous
Coral, your answer doesn’t actually answer anything at all. Please provide the details of the interview you refer to. Telling people to watch TV themselves is evasive and not at all useful.
I work for a health registration board (not in Queensland) and I do know quite a bit about the processes involved in checking the qualifications of professionals who come from other countries – because it’s part of my job.
I can assure you health registration boards in every state operate under very strict legislation and maintain the highest standards possible.
The qualifications of health professionals are checked via accreditation bodies who measure the person’s qualifications against the Australian standard and each one is done on an individual basis. There is a considerable cost involved to the person wishing to practice in Australia.
Applicants work history is checked and they must provide referees attesting to their good character as well as complete statutory declarations.
The process involved can be lengthy and time consuming.
Australia has many many highly qualified overseas trained health professionals working in Australia – the country could not manage without them.
Aug 2nd, 2007
CORAL
I make no apology for not sitting in front of the television set with a notepad and pen in my hand.
The interviewee was a middle aged woman with shortish brown/ginger hair. The program MAY have been “A Current Affair”.
Since you don’t work in Queensland, I can only suggest that perhaps things work differently here.
Aug 2nd, 2007
Donna
Coral
Are you aware that ‘A Current Affair’ is considered tabloid journalism? So is ‘Today Tonight’ & ‘The Courier-Mail’.
They are entertainment programs, and gain their audience through sensationalism. You know, distorting the facts and creating dramas out of nothing.
Aug 2nd, 2007
TrishaM
I have seen medically qualified friends from overseas go through the process Anonymous talks about, and the associated DIAC (Immigration Dept.) processes. This is time-consuming and expensive – they have to undergo extensive medical checks (and each time a departmental deadline is passed through the slow DIAC procedures the applicants have to undergo, for example more X-rays, more medical checks, more multiple copies of documents) – it can take years.
Then there is no redress if the Department claims to have lost your documents, you have to submit everything again. Their spouses as well as themselves have to go through all this, and English checks – at at some expense. Most are in remote or at least rural areas, and so considerable travel is involved as well.
We country folk are damned grateful for the dedicated doctors we are fortunate to have coming here. I have some issues with our poaching needed personnel from overseas, but since I don’t have the power to allow more Aussies to study in medicine and allied fields all I can do is say “Thanks ” to those who come. Little Johnny has the power to make the changes that would end up with more home-grown medicos but he doesn’t. He’s had 10 years – how many Aussies would have been able to qualify in that time? That’s one question we should be asking. And why won’t he do it?
Aug 2nd, 2007
Donna
To add to what TrishM has said above, I also know of someone who had to sit an exam here in Australia before she could gain registration in her professional field in Queensland.
This entailed flying to Australia, at her own expense, to sit the exam. She then had to return to her country of original and wait for her residency to be granted.
Aug 2nd, 2007
CORAL
The world is run by journalists – tabloid or otherwise.
There must be someone else out there who saw that report. It may have been on the ABC – possibly on the 7.00 pm News or Stateline.
I recently saw the current President of the AMA doing the National Press Club address.
I thought she covered most of the issues relating to health very well, except for one thing that might have had people worried.
She said that some aged care centres still had only ONE NURSE looking after 100 residents. What she should have said was ONE CLINICAL NURSE, which is quite different.
When my mother moved into an aged care centre, it had only ONE CLINICAL NURSE for 110 people. After a lot of lobbying, it now has 2.
Most of the nurses working in aged care centres are low paid ASSISTANTS IN NURSING. Each shift has at least 2 REGISTERED NURSES where my mother lives, whose main duty is to dispense medicines. I think they also dress wounds if the clinical nurse is not available.
The CLINICAL NURSES work only daytime hours and shoulder the bulk of responsibility for what goes on, including dressing of wounds, and liaison with relatives and doctors.
The second CLINICAL NURSE, who was responsible for the people with the highest care needs had two nervous breakdowns before quitting the job.
Generally, the Managers of aged care centres are very experienced nurses, with other credentials as well. At this one, she is also a pathological liar with no integrity at all.
Then there’s the Business Manager – an arrogant creep whose main job appears to be wresting the last razoo out of the residents or their relatives – sometimes for items which are supposed to be included.
I think the main agenda of large nursing home chains is to line their own pockets, satisfy shareholders, and leave most of the real work to the poorly paid.
So far, no one has shown any interest in the fact that Assistants in Nursing are not answerable to any governing board or body.
Aug 3rd, 2007