Politicians
should not put people in jail. Nor should they override a court
decision to grant bail. If police or prosecutors inadvertently make a
terrible blunder, due incompetence or zealotry, they should correct it
at the first available opportunity. These would seem fairly
uncontroversial propositions. But not, it seems, once someone is
tainted by a whiff of any alleged connection to terrorism.
Despite the fact that crucial information provided to a court has
since proved false, the Immigration Minister, Kevin Andrews, says he
has no intention of reviewing his decision to incarcerate Dr Mohamed
Haneef in an immigration detention centre. His decision was taken one
hour after a magistrate granted Haneef bail on a charge of recklessly
(but not knowingly) assisting a terrorist group by giving a used SIM
card from a mobile phone in mid-2006 to one of his second cousins in
the UK. Haneef, who was employed on a work visa at a Gold Coast
hospital, told police he was leaving the UK and his cousin wanted the
unused credit on the card.
The Australian Federal Police (AFP) now admits that, contrary to the
claim the prosecution put to the court, the SIM card was not in a jeep
used in a failed attack on Glasgow airport on 30 June this year. An
official transcript clearly contradicts other purported facts in an AFP
statement tendered to the court about what Haneef told police when
interviewed after his arrest. But the AFP refuses to say if it will
inform the court about these errors, or reveal when it first knew that
the information about the SIM card was false.
A spokesperson for Andrews says there is no need for him to review
his decision to lock Haneef up, because he acted on advice from the AFP
which contained other information. It is understood that a classified
annex contains information from the British police about their reasons
for suspecting that two of Haneef’s cousins in the UK may be involved
in terrorist activities, or at least have knowledge of such activities.
Apparently, the annex does not contain any new material clearly
incriminating Haneef in the provision of assistance to a terrorist
group. However, all the law requires Andrews to decide is that Haneef is of bad character because he has associated with people reasonably suspected of criminal behavior.
The only reason the young Indian doctor is currently incarcerated in
an immigration centre, perhaps for several years until his trial is
completed, is that he opted to stay in a Queensland jail rather than
post the relatively low $10,000 for bail set by a Brisbane magistrate.
The
use of this extraordinary ministerial prerogative is not unique to the
Haneef case. But it is normally exercised after someone has been
convicted, not when a trial has just begun. Astonishingly, John Howard
was still insisting as recently as Monday that his government had no
role in the whole affair, despite the fact that a member of his cabinet
had clearly overturned a court ruling on bail.
The ministerial
prerogative exercised by Andrews should not exist. If we are to pay
more than lip service to principles that can be traced back 800 years
to the Magna Carta, executive governments must not exercise
judicial powers. Only courts should be allowed to imprison people for
more than few days.
The law should be changed so ministers can’t jail people. A possible
exception is if someone spends a night in a detention centre before
being deported. Even so, the decision to deport should be taken by an
independent tribunal, not a politician who can be construed as having a
political motive to appear tough on terrorism.
Changing this
law may be easier than ridding sections of the AFP, the prosecuting
authorities and the Attorney Generals department of a dangerous mix of
incompetence and zealotry whenever the slightest prospect arises of
nailing a terrorist. The ability to reason from established facts, to
follow the rules of elementary logic, and to accept innocent
explanations for perfectly normal behaviour, seems to vanish when the
word 'terrorism' is uttered.
There is no excuse for the errors
now revealed in the police statement to the court, or in the
prosecutor’s false claim that Haneef’s SIM card was present at the
scene of terrorist act. In each case, it was easy to check where the
truth lay.
These initial mistakes were compounded by a report in the latest edition of Brisbane’s Sunday Mail
that police now suspect that Haneef was part of a plot to blow up the
largest building on the Gold Coast and symbolically leave Australia on
September 11. Initially, the AFP refused to confirm or deny this
report. After the Queensland premier, Peter Beattie angrily demand an
explanation in view of the assurances he had been given in briefings
that there was no threat anyone on the Gold Coast, the AFP
Commissioner, Mick Keelty, said the report was wrong. He also that the
AFP was not the source. If so, the source would appear to be someone
else at an official level who was happy to release false information
designed to damage Haneef and alarm Queenslanders. As far as is known,
there is no investigation underway to identify the source.
Shortly
after Haneef was charged on 14 July, Keelty, held a media conference
where he assured the public that the investigation, 'has been driven by
the evidence and driven by the facts'. Although hundreds of police were
assigned to the investigation, this claim is demonstrably hollow. But
no one in the federal government, or opposition, has expressed any
concern that the over-eager behaviour of the police, prosecutors and
ministers risks further radicalising Islamic youth.
Terrorism
involves the ancient crime of murder. Haneef is not charged with
murdering anyone, attempting to murder anyone, failing to tell the
police about a planned murder, or knowingly assisting anyone to commit
murder. If ministers and officials don’t want to encourage the
recruitment of more terrorists, they should take far more care to
ensure that a charge of unknowingly assisting a terrorist group is only
laid on the basis of clearly established facts.
Brian Toohey is a columnist and feature writer for The Australian Financial Review, and columnist for The West Australian and The Canberra Times.