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.