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Dodgy outcome demands review

By George Williams - posted Friday, 3 August 2007

The Howard Government repeatedly defended its anti-terror laws during the 25 days it detained Mohamed Haneef.

Attorney-General Philip Ruddock, for example, said: "The system is working as intended." In fact, key parts of the law did not operate as intended and, to the extent that they did, this only strengthens the case for reform.

No one should be allowed to judge their own mistakes, especially where extraordinary powers have been exercised and national security is at stake. There should be an inquiry into Haneef's case by a respected, independent person such as a former High Court judge. It should not be left to a Senate committee to deliberate for months, only to provide a partisan report.


The inquiry should examine the actions of the prosecutors and police as well as the underlying law. The focus must be on operational errors and on a legal regime that has its own flaws.

Australia does need strong laws to prevent terrorist attacks. These must also include effective checks and balances, and reflect democratic principles such as the presumption of innocence. The laws should also prevent terrorism investigations becoming politicised by ministers using immigration or other powers.

The inquiry should examine whether Australian law matches these goals. It should examine whether it is right to hold a person without charge for an indefinite period. The Crimes Act says a terrorism suspect can be questioned for 24 hours. However, it also says a magistrate can permit "dead time" so questioning can be spread across an undefined number of days. This enabled Haneef to be detained for 12 days rather than about 12 hours, as for other serious offences.

When the law was passed in 2004, I argued before a Senate committee for a maximum of two days detention without charge. This was to overcome the possibility of significant periods of dead time causing an over-lengthy detention. The Attorney-General's Department rejected this, with a senior official saying: "I would be extraordinarily surprised if the dead time, for example, in relation to the time zones, would get anything like the sorts of time periods that were being suggested by Professor Williams."

Of course, Haneef was detained for 12 days, not two.

Concerns about the law led then justice minister Chris Ellison to promise in parliament: "Should the Senate pass this updated dead time mechanism, I make the undertaking that the Government will conduct an independent review of the new investigatory framework for terrorism investigations approximately three years after they become law. Such a review would provide an opportunity to exhaustively analyse the operation of the new provisions and remedy any evident operational or legal shortcomings."


Both operational and legal shortcomings are apparent, yet we have not seen the promised review. It was due on June 30.

The independent inquiry should also examine the immigration law used to detain Haneef after he had been granted bail. That law allows the Immigration Minister to revoke a person's visa where he reasonably suspects they fail a character test, such as due to association with someone else suspected of criminal activity. The minister can cancel a visa in the "national interest" using secret information and without allowing the person to put their case. This power is open to political manipulation and, as in Haneef's case, can be used to circumvent the justice system. It needs immediate amendment.

These problems expose some larger issues. Australia has adapted anti-terror laws from other nations such as Britain without including their safeguards. British law, for example, must be read in light of Britain's 1998 Human Rights Act, which sets out the basic standards of liberty needed for a democracy.

That act has allowed new terror laws while also ensuring they do not undermine the values the laws are meant to protect. If Australia is not to enact a national charter or bill of rights, we must take extra precautions to make sure our anti-terror laws operate fairly and without political interference.

The Haneef case has exposed big problems with Australia's anti-terror legislation. However, it dealt only with one small aspect of the laws. Since September 11 the federal parliament has passed 44 anti-terror statutes. They provide for everything from limiting freedom of speech under sedition offences and control orders to the secret surveillance of innocent people and ASIO being able to have non-suspects detained to gather intelligence.

While many of Australia's anti-terror laws are in good shape, others are not. The unfairness and injustice in the Haneef case can be too easily seen in other laws that have yet to be pressed into service. These laws also require attention, lest we see another case such as Haneef's.

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First published in The Australian on August 1, 2007.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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