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The pursuit of terrorists post September 11: be afraid, be very afraid …

By Andrew Boe - posted Thursday, 2 August 2007

Mohammed Haneef is now back in India, and only time will tell whether or not he will want, or be allowed, to return to Australia.

Countering the real risk of bombings by people who hold extreme views is an important task for governments throughout the world. The need for effective laws to pursue terrorists cannot be denied. The Mohammed Haneef case has shown that this must be balanced with individual rights and fundamental principles of justice to ensure that Australia remains a civilised, principled society.

The Federal government's recent treatment of Haneef has exposed just how brutal the exercise of executive power against an individual can be in this political climate - and, perhaps more importantly, that the broader community is not necessarily any safer because of these measures.


The link between "terrorism" and our migration laws is complex and one that is easily manipulated in tabloid politics. No one could have complained if Haneef was deported after a proper application of the "character test". However, that is not what happened.

Haneef was first subjected to the sharp edge of Australia's so-called anti-terror legislation: every tool available to the authorities was used short of physical torture. All that has been shown is that these powers in the hands of faceless investigators and bureaucrats should make us all shudder both in fear and in embarrassment.

Minister Andrews' decision to revoke Haneef's visa was unashamedly intended to usurp the criminal process by moving the power to detain him, before he is convicted, from the court system to the executive government. The fact that he relied upon faulty information emphasises the dangers when there is not independent judicial assessment of information relied upon by police. Add to that the overstatement of these assertions by the government's prosecutor and we have the recipe for tragedy.

Removing such important decisions about our freedoms and liberties to political frameworks means that the truth is apt to be clouded by dust and spin. This has the practical effect of greatly diminishing the power to review the government's actions and removing obligations of disclosure.

The propriety of this move has been intensely questioned, and the paucity of the evidence available to the AFP has been expertly revealed by the media. It is clear that now is the time for reflection; yet we have the cold response by Minister Ruddock that this is exactly how the laws were intended to operate.

When the independent court's assessment of the evidence did not reflect the government's wishes, the Attorney-General foreshadowed reviewing the laws to make them even more draconian. Several ministers have also made personal attacks upon Haneef's lawyers, a disgraceful and transparently cynical use of Orwellian "Newspeak" that Philip Ruddock perfected when he held his last portfolio. Even Commissioner Keelty has joined the blame game rather than using this debacle as an avenue to improve the AFP's capacity and efforts.


This lack of self-awareness and insight by these powerful figures, our front line against terrorism, should make us very concerned. If they cannot see the obvious shortcomings, how capable are they of protecting us from real terror?

A far more responsible approach is necessary. There is a need to make a sober assessment of this legislative framework on important principles of criminal justice. Also, a sophisticated, independent identification is needed of the actual risks and whether any improvements to security have been achieved by these measures.

The processes involved in the "ordinary" or non-terrorism related criminal justice system are understandably complex. There is instilled in this system a number of principles which are intended to strike a reasonable balance between the due prosecution of offenders and the protection of our individual rights. Views may reasonably differ on some of these principles but they have been in place for centuries and include the presumption of innocence and placing the burden of proof on the prosecution, as well as setting the standard at proof beyond reasonable doubt before a person can be found guilty, incarcerated or otherwise punished.

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Andrew Boe acted for the first person charged with a terrorism offence in Queensland. His association with the magistrate who granted Haneef bail is such that he makes no comment as to the correctness of her decision. He will be appearing at a Community Forum: Anti-Terror Laws and Your Civil Rights on September 2, 2007 at the Multi-Faith Centre, Griffith University (Nathan Campus). First published in The Brisbane Line on August 1, 2007.

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About the Author

Andrew Boe is a lawyer in private practice in Brisbane. He specialises in criminal law defence and administrative law cases. Andrew has appeared or acted in some significant cases in Queensland and NSW. He has an interest in legal issues involving the Aboriginal community, crime and corrections. He was born in Burma and has an interest in the democratic movement in that country.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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