DUCKPOND

The fundamental threat to democratic society comes not from what terrorist have done, and might do, but how the elected government responds to terrorism, in its actuality and its potential, in its realized effects, and in its imagined effects. What is feared is often greater than what has happened.

Of all forms of society and systems of government there are reasons to suppose that democratic societies might be most resilient. Bombing of cities, which before Guernica without question a war crime, tends to strengthen resistance. The bombing campaign in England by the IRA did not cause that society to crumble. Of course, the IRA would typically ring ahead and announce the presence of a bomb, which makes me wonder whether the anti-Islamic hysteria and racism may be factors at work.

The legislative and subsequent responses of the Government to terrorism have not been framed in terms of the inherent dangers they pose to representative democracy. The fact that the Opposition Labor Party has been so supine on the matters of principle suggests, not just to the cynics and the sceptical, that major political players are conscious of the political advantage to be gained and lost. Outrage is restricted to the minor parties. For example, in relation to Haneef case, The Sydney Morning Herald reports Senator Andrew Bartlett, following the Immigration Minister’s decision to cancel Dr Haneef’s visa after a magistrate had granted bail for a surety of $10,000, as saying:

“A country where justice is not allowed to take its course and the presumption of innocence is reversed on a government whim is not a democracy – it’s a dictatorship.”

Despite being detained for an extended period of time to enable the police to find evidence to charge him, the intervention of the Government means that Dr Haneef will be moved from Brisbane to Sydney so he can be incarcerated at the Villawood Detention Centre. He will therefore be effectively isolated from his present lawyers. Apparently the Immigration Act requires the Minister’s action to be reasonable, but apparently he is not required to give reasons. As a politician he is apparently able to make spurious claims that his action will not prejudice guilt or innocence.

While it need not be the case, we might consider that terrorist acts are usually the work of a group of people not individuals. While the presumption is not necessarily true, but more likely than not, locking up one individual is not likely to stop terrorism. In the case of Haneef, the case against him seems to be quilt by association, since he might plausibly given his SIM card to his second cousins for several reasons other than terrorism, and it would be hard to prove, other than retrospectively, that his action negligent or reckless. A normal person in similar circumstances might reasonably be expected to have not foreseen the consequences. I would have thought that justice requires that Dr Haneef be charged almost immediately and he be given the opportunity to defend his reputation.

And as to the question as to whether these events go to the issue of the rule of law, we can be guided by the Chief Justice of the High Court of Australia, Murray Gleeson, who said in an address at Melbourne University on 7 November 2001:

As an idea about government, the essence of the rule of law is that all authority is subject to, and constrained by, law [5] . The opposing idea is of a state of affairs in which the will of an individual, or a group, (such as a Party), is the governing force in a society. The contrasting concepts are legitimacy and arbitrariness [6] . The word “legitimacy” implies an external legal rule or principle by reference to which authority is constituted, identified, and controlled.

In Australian legal and political discourse, a governing authority could not satisfy the requirements of the rule of law merely by being able to point to a fundamental law which empowered it to act in an arbitrary manner. The issue is unlikely to be of practical concern, because of our federal Constitution.

It seems that the Government, with the support of the Opposition, is prepared to substitute arbitrariness for legitimacy. Ruled by fear we allow ourselves to become, or allow our political masters to act as if were feeble.

One option that Haneef has is not to pay bail, and so not be subject to detention. The case raises the issue of the protection of human rights.

So we can see in this illustration that representative democracy, the rule of law, and human rights do not appear to be values for the Government or the Opposition. We might reflect on what this means for us.

James Farrell at Club Troppo has the interview by Kerry O’Brien with Minister Andrews. It would appear that he is acting on different advice from the Federal Police to that tendered to the Court.

This case just seems to get weirder by telling. What does it specifically mean within the Act to have “a reasonable suspicion of association of people engaged in criminal conduct”? Are there any relevant court decisions in relation to this question? Otherwise the ordinary meaning of the words would incriminate, as was pointed out today, most barristers and police engaged in many criminal trials.

As was said elsewhere, I believe on Lateline, the Labor Party are awaiting to be briefed on this matter by the Federal Police, and then they will not be free to talk about their briefing. Catch 22.

At least we are showing the world we are strong on terrorism.

Postscript: 17 July 2007

The Commonwealth Migration Act 1958 can be read here. According to the World Today on Radio National, “recklessnes” and “negligence” are two different concepts, presumably with two different tests. My supposition that the Minister was given different advice to that given to the Magistrate was supported – just goes to show wild assumptions can sometimes be right.

It was interesting and enlightening the hear the argument against the person employed by an eminent lawyer in this interview – it is not just humble bloggers (and the not so humble ones as well) who allow their attempts at argument to descend into a political and personal spat.

ABC News Online reports:

Immigration Minister Kevin Andrews says Gold Coast-based doctor Mohammed Haneef will be deported from Australia, regardless of the outcome of criminal proceedings against him.

To me this is an outrage. I would suggest that justice requires, especially in the light of the consequences for Dr Haneef’s future medical practice that he be given the opportunity to clear his name, and if his innocence is proven there is then no basis for taking any action against him. The system of justice we have is build around a presumption of innocence until proven guilty. Other presumptions are possible, but they would require different legal arrangements.

In the same article the contrary judgment, was expressed by John Dowd:

. . . a former Liberal politician says the Government’s decision to revoke the visa of Haneef will be politically popular.

Former New South Wales attorney-general John Dowd, who is now with the International Commission of Jurists, says the decision will appeal to sections of the public.

“This is a vote-winner for the Government,” he said.

“There’s no doubt that the people, a lot of the people out there – they say ‘yes, well he ought to be kept away’, and how the Government’s got to protect us and so on – this is politically astute.”

Sometimes I might be alone in what I hold, but I am prepared to stand by it. If that makes me “a nutter talking to myself”, as Christian Kerr, from Crickey, so condescendingly observed on Late Night Live last night, then so be it. I had the sense that as soon as “constitutional niceties” could be conveniently put aside, it would not be long before “legal niceties” would follow.

Further Update: 18 July 2007

The Australian this morning published the record of interview between Dr Haneef and the AFP. It looks pretty standard stuff to me, very much like the interview with David Hicks at Guantanamo. Care was taken to record the details accurately.

( I did have a link to the transcript of the AFP interview with Dr Haneef, but much of the information is personal and is no business of mine or anybody else. I do not know the rights and wrongs of these things, or what is legal, but it seems to me there is an important question relating to respecting a person’s privacy. Dr Haneef is entitled to expect that much of this information, which he choses or is required to share with the AFP will be confidential).

Further Update:

The barrister for Dr Haneef confirmed that he released the transcript with the AFP in the interest of his client. He did so because selective links had been previously made, presumably by the Government, who now have engaged the AFP to investigate whether he was in contempt of court.

ABC News Online reports that Stephen Keim SC is supported by the chairman of the criminal law section of the Queensland Law Society, Sean Reidy who said:

Mr Keim is a lawyer of the highest integrity and the attack appears to be vicious and personal.

“This is exactly what happened in the Tampa case where the lawyers there were personally attacked by the Government,” Mr Reidy said.

“You have to have a great deal of concern for the administration of justice when in high-profile cases lawyers are being personally attacked.

“To describe this information as a leak is to completely misdescribe it.

“He has released information that is effectively owned by his client and it is information that … part of it is in the public domain and will be shortly in the public domain.”

Mr Reidy says the legal fraternity is monitoring the case closely.

Mike Steketee writing in The Australian observes:

The Government ultimately may or may not be able to make a terrorism-related charge stick against Haneef. But so far it has presented a particularly unconvincing case that his association with the British plot is anything other than marginal. Andrews tells us he acted partly on the basis of information from the AFP that he cannot disclose. If that is stronger than we have heard up to now, why didn’t the prosecution put it before the magistrate in the bail hearing, in closed court if necessary? Why has it chosen so far not to exercise its right to go to the Queensland Supreme Court to argue for the bail decision to be overturned?

There were no clear answers from the Government yesterday on these questions. But it is much easier getting the result you want if you are judge, jury and prosecutor rolled into one, particularly when you have an apparently weak case.