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.

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140 Comments

  1. 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???

  2. 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.

  3. Thordaddy wrote:

    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.

    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?

    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.

    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.

  4. 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.

  5. 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

  6. 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.

  7. 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.

  8. Thordaddy,

    Let’s get some simple things straight up front, since you don’t appear to understand nuance.

    I think it has been readily established that no one within the Australian judicial system has violated Dr. Haneef’s “presumption of innocence.”

    Agreed.

    The question is whether his revoked visa and subsequent detention and/or deportation is allowable by law.

    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.

    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.

    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?

    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

    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.

  9. 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.

  10. Thordaddy wrote:

    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.

    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.

  11. 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.

  12. 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.

  13. 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?

  14. 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.

  15. 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?

  16. Why is Mr Lotharrson able to post 5,000 characetr posts

    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?

    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.

    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.

  17. 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.

  18. New and improved, shorter comments!

    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.

    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.

  19. 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

  20. Lotharsson,

    You say,

    For your logic to be valid you would have to show that this ministerial decision was not… 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.

    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?”

  21. 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.

  22. 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?

  23. Thordaddy wrote:

    We have established that Dr. Haneef did not have is “presumption of innocence” violated by the judiciary.

    This is true, but no one has ever asserted anything else, so it hardly needs ‘establishing’.

    We have also established that the minister has made decisions that are within his purview via the democratic process.

    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.

    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.

    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”.

    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.

    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”.

    We have also established that being deported from a foreign land back to your home and family cannot be considered “punishment”.

    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.

  24. 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??

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. 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.

  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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?

  36. 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.

  37. 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.

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