Haneef Frame-up: Why "Terror" Laws Should be Repealed

(There have been widespread outrage and protests in Australia against the detention of Dr. Haneef, an Indian doctor, under Australia's draconian terror laws. This piece by Dale Mills and Tony Iltis is to appear in the Australian Green Left Weekly GLW #718, July 25)

The ongoing detention of 27-year-old Dr Mohamad Haneef, despite a court granting him bail, has further exposed the Howard government's extremist disregard for civil rights and the rule of law, and the dangers inherent in the so-called anti-terror laws. Haneef, an Indian citizen working as a registrar at the Gold Coast Hospital, was arrested at Brisbane Airport on July 2 and detained without charge. On July 14 he was finally charged with "providing support to a terrorist organisation".

On July 16, bail was granted to Dr Haneef on the basis that he provide a $10,000 surety and report to the police three times a week. This is despite the fact that there is presumption against bail under the "anti-terror" laws unless exceptional circumstances can be shown. Magistrate Jacqui Payne decided that there were exceptional circumstances - an extremely weak prosecution case.

The only "evidence" known to link Dr Haneef to any wrongdoing was the fact that his cousin, Sabeel Ahmed, has been charged in Britain with withholding information that could have prevented a terrorist act and that Haneef gave Ahmed a SIM card for a mobile phone, because it had unused credit, before leaving Britain for Australia over a year ago. Payne noted that there is no evidence that linked the SIM card to an actual or planned terrorist attack.

However, before Haneef could be released on bail, federal immigration minister Kevin Andrews revoked his skilled worker visa saying that Haneef had failed the character test in the Migration Act. This meant that he was in Australia unlawfully and thus could be placed in immigration detention. While immigration detention is supposedly a prelude to the person being deported from Australia, the Australian Federal Police (AFP) issued a criminal justice certificate that means Haneef cannot be removed from Australia for the duration of his trial, which could last years. The government thus used immigration law to achieve what it failed to do through the courts.

Haneef's lawyers have decided not to post the $10,000 surety to stop him being removed to Sydney's Villawood Immigration Detention Centre, where it would be harder for his lawyers to access him. Haneef is currently being held in solitary confinement in Brisbane's Wolston Correctional Centre.

This is not the first time that Australia's immigration laws have been used by the Howard government to obtain an outcome through administrative processes that could not be obtained through judicial processes: the same stunt was used in relation to the US peace activist Scott Parkin who had his visa revoked by then immigration minister Phillip Ruddock in September 2005.

"We are very concerned at the minister's actions. It is as if the Commonwealth put everything they had before the umpire and then, not liking her decision, took the game into their own hands," Haneef's solicitor Peter Russo said. These views were supported by other prominent lawyers. Greg Barns, a former adviser to the Howard government, said "This is a minister saying 'I don't care what the courts say ... I've made an assessment that these people are guilty.' This is a very, very dangerous road to head down." Cameron Murphy, secretary of the Australian Council for Civil Liberties, said "Because the Government doesn't like the decision of the court to grant bail they just rely on a technicality of the immigration legislation to lock him up. The reason we have an independent court system is so these incredibly important decisions are made for the right reasons, and aren't subject to political interference. It is not appropriate for the Government to just keep him incarcerated because they don't like the decision of the magistrates' court."

He drew parallels with the case of Melbourne man Jack Thomas, who last year had a control order placed on him after the Victorian Court of Appeal overturned his terrorism-related convictions. According to President of Liberty Victoria, Julian Burnside: "What Andrews has done is an unprincipled misuse of the Migration Act. He took no steps to cancel Dr Haneef's visa until a magistrate granted Haneef bail. If the prosecution drag their feet, Dr Haneef could be in detention for years, even though a magistrate thought he should be released on bail."

Faced with this criticism, government and police spokespeople have used the media to imply Haneef was linked to terrorism. In response to this his barrister, Stephen Keim, released to the media the 142 page transcript of the original police interview. This was initially published on the Australian's website but removed following government pressure. It can now be accessed on the website of Indian newspaper, The Hindu.

What the transcript clearly revealed is that much of the evidence presented to Magistrate Payne by the AFP was incorrect. The police had alleged that Haneef had shared an address with his cousins Sabeel and Kafeel Ahmed in Liverpool, England, when, in fact, in the interview transcript Haneef is very explicit that they were not resident there at the same time. Furthermore, police allege that Haneef had no explanation for his attempting to travel to Bangalore on a one-way ticket while in the transcript he tells police in great detail about how his father-in-law had bought the ticket for him in Bangalore so that he could return with his wife and new-born daughter. Likewise, the police referred to a recent on-line conversation between Haneef and Sabeel Ahmed, covering up the fact that it was about the birth of his daughter.

The police also told the court that the SIM card which Haneef had given Sabeel Ahmed was found in the burning wreckage of the Jeep used in the botched June 30 terrorist attack on Glasgow Airport. In fact, the ABC revealed on July 20, the SIM card was in phone that was taken from Ahmed when he was arrested in Liverpool eight hours after the attack.

In India, there has been widespread condemnation by politicians and the media of Australia's persecution of its citizen. Haneef's wife, Firdous Arshiya, who has been denied a visa to Australia, has been outspoken on the case. In a July 17 interview with the Melbourne Herald-Sun she said "The entire Australian Government are terrorists".

While this latest abuse of "anti-terror" and immigration laws has been condemned by the Greens, the Democrats and the Socialist Alliance, the federal ALP has steadfastly stood by the Howard government.  For example, Labor shadow immigration minister, Tony Bourke, was quoted in the July 16 Courier Mail: "The minister has obligations under the Migration Act and based upon what's publicly available he's exercised those obligations appropriately". Victorian ALP minister Rob Hulls has, however, expressed disquiet about the case.

Haneef's lawyers are appealing Haneef's visa revocation to the Federal Court. At a July 18 directions hearing, that ruled that the matter would be heard on August 8, Justice Jeffery Spender said that he was astounded by the government lawyers' arguments and commented that he too would have failed the character test. Perhaps concerned that magistrates and judges were not sufficiently cooperating in the frame-up of Haneef, Attorney General Philip Ruddock wrote an opinion piece in the July 17 Australian attacking "judicial activism".

Implying that legal criticism can somehow be equated with supporting terrorism he wrote: "Make no mistake, many of the lawyers and academics calling for change in this area [relating to judicial appointments] are the same lawyers and academics who attack the Government for its steadfast protection of Australia's borders, and for its strong stance on terrorism."