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detention without charge « Previous | |Next »
July 10, 2007

I've been watching the news for the way that counter-terrorism officials are being given extension after extension to investigate the Gold Coast doctor Mohamed Haneef and his alleged connections to members of a British terrorist cell. This detention without charge is now into its second week.


Its a closed world isn't it. Haneef has effectively lost his personal and civil liberties. Does this mean sacrificing the freedoms of a democracy on the altar of national security? Conservatives in a utilitarian society have little time for human rights, and they have even given up talkign about states rights. Their old state rights discourse, which they used to dismiss human rights, has been replaced by order and political authority. The authoity of the state stands supreme and it is concerned with security and the open society is a luxury we cannot afford.

The case made by former High Court chief justice Gerard Brennan is that Australia's anti-terror laws have gone too far and by implication the terror threat has been exaggerated by both the Government and security agencies. stereotyping of particular groups.

John Stanhope makes a general point when evaluating the says in the Canberra Times on the Federal Government's package of measures for Northern Territory indigenous communities:

We are certainly not encouraged to ask about the human-rights implications of particular decisions, or highlight the potentially discriminatory nature of particular policies. We are not encouraged to ask whether initiatives are evidence-based. Dare to ask if the rule of law the very bedrock of our legal system is being adhered to, and you run the risk of being accused of giving succour to terrorists, paedophiles, prisoners whatever unsavoury sub-set of society the state seeks to crack down on.

So who do we begin to counter this. Why not start with reducing the power of the Prime Minister to declare war; dissolve Parliament; recall Parliament; ratify treaties; and to make high-level appointments without scrutiny, including judges. These executive functions should be surrended to Parliament as Gordon Brown, the new British Prime Minister, plans to do.

| Posted by Gary Sauer-Thompson at 07:02 AM | | Comments (21)


I'm not sure about his solicitor having never heard of him. I do feel Mick Kelty's mob are a diligent lot and would expect to be seeing some evidence soon or his release. Though I don't expect his release will be this decade.

If you are referring to the Gold Coast doctor Mohamed Haneef currently under detention the police have having difficulty persuading the judge to extend the detention order for more than two days. They wanted it extended for another week.

Yes I saw that. Remembering that all these rules of detention are relatively new and we are talking about the Gold Coast courts not Melbourne or Sydney I would think that it was predictable for the judge to rule on the side of caution. Given the Dr Ali deparkle too.

But while on the subject.
I do wonder about the motivation of some of these new breed of educated bombers. I wonder whether the motivation to do these things is based on a real belief in some ideology or the fear of reprisals to family member still living in the homelands.
I can understand dumb poor people behind brainwashed or motivated to do these things and the possible escapism that it brings but these Doctors I am not convinced that its all for Islam/Allah.

devolving power from the crown to parliament has nothing to do with democracy. 'democracy' involves the people, not politicians.

but a step in the right direction, you may think, bringing british governance from the 13th to the 18th century. not necessarily- american society is essentially 'georgian' and bush was not even mildly impeded by congress in his amoral and possibly insane iraq adventure.

since british parties are much more 'disciplined' than american, it's unlikely that british policy will be much modified. besides, in a society where not much of value is written gown, rules will only last as long as they are convenient.

oz pollies are stronger still. preferential voting and a captive nonentity for 'chief executive officer' means the biggest party takes all the prize. cabinet will not devolve power. why should they? when you've trained the people to believe politics is none of their affair, why enlighten them?

its a weapon just like a gun or a cruise missle. Sydney Jones at the Festival of Ideas said that they are very sane and tactical. It's their strategic response to the US, UK + Australia's relentless bombing Muslim ciivlians in the Middle East.

The Age reports that lawyers for the Australian Federal Police (AFP) will seek a third extension to Dr Haneef's detention in the Brisbane Magistrates Court tomorrow morning.The AFP applied for a five-day extension late on Monday, and were given a 48-hour interim order to allow them to compile their case for the application.

High profile barrister Stephen Keim, SC, will oppose the application on behalf of Dr Haneef. Crunch time is coming.

I have just posted material on my blog at indicating that both Dr. Haneef and David Hicks are unconstitutionally held. If we for whatever reason are going to justify this kind of conduct then we simply have no democracy!

If we do not seek to stop it then we may just find that the real TERRORIST will be the least of our problems, as we have already lost in the meantime our democratic rights.

Gary Suaer-Thompson
Re your comment;

"So who do we begin to counter this. Why not start with reducing the power of the Prime Minister to declare war; "

The Prime Minister has no such prerogative powers, as only the Governor-General can do so on behalf of the Monarch.
(See my blog as it quotes the Framers of the Constitution).
Parliament is basically in the pocket of the Prime Minister and as such useless.

There is to my knowledge no equivalent of Brown's proposals in Australia. It seems to me that the Parliament,in particular the House of Reps, has been effectively sidelined from the decision making process. This is illustrated by the intervention, and Howard's assertions today as to what is going to happen there.Have we ceased to be in any real sense a representative democracy?

(I believe that to be the case, since the executive is not held accountable.As far as I can see there is not political or financial accountability. The Parliament is dysfunctional)

wmmbb, As little as four years ago the Australian Democrats had a bunch of policies in this area, their current constitutional reform policy has been gutted from what it used to be.

The Australian Democrats are on the skids and about to disappear and be replaced by the Greens.

Nick Minchin gave a speech to the National Press Club on Wednesday warning of this.He says:

If I can talk about one final reason why a Labor Government would be very different to the spin in their commercials, it is the Greens.If an election was held on the weekend, according to Newspoll, Labor would win with around 48% of the primary vote.On those figures, they would have three Senators elected from each State and one from each Territory – so 20 Senators, on top of the 14 continuing Senators elected in 2004, making a total of 34 Senators – five short of a majority.With a primary vote of 39%, the Coalition might only have 14 Senators elected, to go with 19 continuing Senators elected in 2004 – so a total of 33. The balance would depend on preferences but based on current polling we would see the Greens have at least five senators, on the back of a preference deal with Labor, and the Greens would effectively control the Senate.

Minchin adds that there is no doubt that Greens Senators would hold a Labor Government to ransom to achieve the Greens’ radical agenda.

Minchin's speech is designed to stir fear and anxiety. He says that the Greens won’t spell out what’s been promised as a quid pro quo for their expected preference deals with Labor. He asks:

Which Greens policies would Labor accept as a price for Greens support? Reintroduction of fuel excise indexation? Abolition of the Private Health Insurance Rebate? Legalised euthanasia? Legalised heroin injecting rooms? Cutting greenhouse gas emissions by 80 to 90% by 2050? The abolition of HECS? Free public transport? Scrapping the baby bonus?It is a scary prospect. With the reality of wall-to-wall State and Territory Labor Governments, then the possibility of a federal Labor Government and a Labor/Greens controlled Senate, means Australians should be very concerned about losing all the checks and balances in our federal system.

Bob Brown has been quite explicit on executive dominance. He says that Greens would inssit on returrning the Senate's powers of review.

G. H. Schorel-Hiavka
I see that Philip Ruddock, the nation’s first law officer, thinks that Dr Haneef will be able to waltz on out of the Brisbane gaol where he is being held "free from any taint" if he is not charged with any offence.

Isn't Ruddock engaged in double speak?

G. H. Schorel-Hlavka
The lawyer acting for Dr Haneef---- a person whose liberty has been stripped from him simply on the basis that the authorities want to conduct a fishing expedition to see if they can land a catch---is denied access to all the evidence in the case against his client.

Isn't this ethically corrupt?

the ALP is pretty disappointing on human rights these days. It has said nothing on the oppressive and inhumane treatment of Dr Haneef, or the behavior of the law enforcement apparatus of the State over the past two weeks.

Dr Haneef, 27, who is yet to be charged with any offence, has been in custody since he was detained in Brisbane last Tuesday.

He has been detained under an extension of “down time” under which he can be held but not questioned, and police are now allowed 12 hours of questioning before he must be released.

He will now be will be free within 24 hours as the Australian Federal Police have declined to seek an extension of this time in detention.

So they had nothing on him.Nor could they find anything during the two weeks.

I see that Dr.Haneef has been charged after being held in Brisbane for nearly two weeks, under the Anti-Terrorist Act. Dr Haneef could theoretically serve up to 15 years' jail for "recklessly" giving a mobile SIM card to a distant relative who allegedly became one of the terrorists who attempted to detonate bombs in Glasgow and London.

On the surface, Dr Haneef seems to have been charged because (on circumstantial evidence) he appeared to act suspiciously. A court will now decide if he is an innocent person merely unlucky enough to know some alleged terrorists and who panicked when he realised he might come under suspicion. Or whether he is someone more sinister.

Whatever the outcome Haneef is the first person to be charged in Australia with "recklessly" supporting a terrorist organisation.This leaves people open to similar charges if they show even a minute level of support to a terrorist organisation.

are we meant to take this seriously? Haneef has "recklessly" giving a mobile SIM card to a distant relative who allegedly became one of the terrorists who attempted to detonate bombs in Glasgow and London. 12 days of detention to come up with that?

There is no need to even have an intention to help or support an alleged terrorist group. The specific allegation involves 'recklessness' rather than 'intention.' So whatr does recklessness mean in the Anti-Terrorism Act.

How do you make the jump from giving your old sim card away to a family member to aiding and abetting terrorists?

What about the ongoing commentary by Attorney-General Philip Ruddock before charges were laid gaving the impression Haneef was associated with terrorism before charges could be tested. Doesn't that compromise Haneef's right to a fair trial.

It would seem that the law enforcement agencies were desperate to prove that we have a genuine terrorist in our midst; one linked to, and allied with, a genuine, act of terrorism in London. Commissioner Keelty says the AFP has had more than 300 lawyers and police working on the investigation, who had to examine a considerable amount of material.

So we need to be alert and alarmed. It gives Howard the reason to push the fear button, which he does when he says that all of this is a reminder that:

"terrorism is a global threat … you can’t pick and choose where you fight terrorism.You can’t say I will fight it over there but I won’t fight it here.

The case against Haneef does look to be extremely weak. Am I feeling safer and relaxed? Not at all. Presumably this was a sim card Haneef gave to his cousin a year ago because it was useless to him in Australia. This looks to be a case of 'guilt by association’ at this stage.

the politicians aren't the only people stirring up public fear of terrorism. People in the counter-terror industry are also doing their bit.

the magistrate (Ms Payne) who allowed Dr. Haneef bail said she had to consider the concept of "acceptable risk" that was part of every bail decision and the stipulation in the criminal code that a person charged under the terrorism laws should be granted bail only in "exceptional circumstances".

She drew on several High Court cases to find that the "cumulative effect" of a number of factors meant Haneef's circumstances were exceptional enough to release him into the community.

These included that he was not alleged to have been directly involved with a terrorist group behind last month's failed extremist attacks in London and Glasgow; that the mobile phone SIM card he gave to his second cousin was not alleged to have been used as part of an attack; that he left it with his family member when leaving Britain; that he was a doctor studying with the Australian College of Physicians; that he had no criminal history and a good employment history; that his passport had been taken and that he was likely to be placed under surveillance if released.

So though Haneef is still innocent in the eyes of the law he has had his 457 visa revoked and is now locked up in immigration detention until his trial in Brisbane is over. The Immigration Minister Kevin Andrews said he was satisfied the Indian-born doctor had failed the "character test" because he had an association with persons involved with criminal conduct.

So what happens if Haneef is found innocent? Is his 457 visa returned. Or is he sent packing back to India?

This case is looking to be more and more political. The Howard Government really wants Haneef locked up, no matter what.

In a strict legal sense, Kevvin Andrews's decision to cancel Haneef's visa on character grounds is separate to the criminal proceedings under way in Brisbane.

However, in a practical sense, the visa cancellation is a mechanism that has allowed the Government to override the decision of the Brisbane magistrate and ensure that Haneef, whether guilty or not guilty of the terrorism charges, will never have freedom again in Australia.

Even if Haneef is eventually acquitted by the Australian courts, Andrews decision would allow the Government to then deport him from the country.

Politics overrides the rule of law. The conservative base will be happy.

What disturbs me is this. The magistrate in the courts has ruled that that there is insufficient evidence for the defendant to be held without bail (granting bail at $10,000). The government declared that there is sufficient evidence for him to be held without bail under a different act of legislation, but applying the same set of circumstances that the courts have.

Now if the separation of the legislature (parliament) and the judiciary (the courts) is something that is well and truly enshrined in our constitution, then the legislature has overruled the judiciary using the same set of facts.

So the commonwealth government was undermining the independence of the court system by revoking the visa after a magistrate granted him bail. I don't like the suspension of the rule of law.

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