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Predicting the Haneef inquiry

The Clarke Inquiry into the case of Dr Mohamed Haneef is due to report to the Attorney-General on 14 November. I'm assuming the report will be made public immediately (apart from any confidential supplements), as Robert McClelland asked for a report that could be made public.

With the report due in only a few days, it is time to get in early, and predict the findings and recommendations that Clarke will make. There are two reasons.

First, the report should be a matter of major public interest, and getting in early may prompt 'diarists to read the submissions that are available on the Inquiry's web site - or at least skim some of them. That should make for a more informed discussion.

The second reason is personal. I want to get my predictions on the record before the event. A little bit of ego, but mostly as a test of how well I have understood the events, the submissions, and the workings of the Inquiry. Others may want to make their own test.



  • The lawfulness of the arrest and continuing detention.
    Haneef's lawyers argue that the original arrest was unlawful, on the grounds that the arresting officer could not have held the "belief on reasonable grounds" that is required. It's unlikely Clarke will agree, but he may find the detention unlawful from quite early on. Even if he does not nominate a point where the detention became unlawful, he will operate on the basis that, in the end, it was unlawful. He may, but shouldn't, recommend that the grounds for arrest be relaxed to the common law standard of "reasonable suspicion".
  • The investigation time and down time.
    There should be criticism of both the AFP and the magistrate over the way applications for these were handled. There will be three related recommendations: that applications must be made to a judge; that the rights of the suspect to representation be re-inforced; and that there be a defined limit to down time (probably 48 hours). There are various ways the indefinite down time issue could be addressed, but the simplest is probably just to cap it.
  • The conduct of the investigation.
    Much of the investigation seems to have had nothing to do with the original charge, or with any other potential charge for which there could be a "reasonable suspicion". In essence, the original charge was soon known to have no grounds, and the investigation was then just fishing, in an effort to find a charge that could be made to stick. The motivation may well have been to avoid the embarrassment of having to release Haneef. If Clarke does explicitly find the detention unlawful, it is likely to be from the time when the information came through from Britain clearing Haneef on the original charge. He could recommend, but almost certainly won't, that relevant officers be charged with a corruption offence.
  • The charging of Haneef.
    There should be criticism of both the CDPP and the AFP. The CDPP for succumbing to pressure and recommending charging when there was no prospect of conviction. The AFP for applying the pressure, for inadequate dealings with the CDPP, and for using the advice to charge Haneef when they knew there was no prospect of conviction. The procedures for co-operation are probably adequate. The recommendation will be that the procedures be followed, possibly with some greater guidance on their implementation.
  • The Andrews connection.
    If Clarke makes an adverse finding against Kevin Andrews, which I've said is likely, then it will be that the visa cancellation was made for an improper purpose. "Improper purpose" started out as part of Haneef's appeal, but wasn't pursued. There is plenty of evidence suggesting improper purpose, but proving it against Andrews would be another matter. In any case, Clarke should criticize the cancellation as improper. There should also be recommendations to amend immigration law so that the minister's discretion is subject to the rules of natural justice, and that the detention or otherwise of a person facing criminal charges be a matter for the courts.
  • International Relations.
    The problem here is that information provided to Australian agencies on a confidential basis is, apparently, subject to an inflexible blanket prohibition on release. The relevant agreements should be re-negotiated to allow appropriate disclosure of the information where it does not compromise the investigation, national security, or relevant privacy considerations. The information should be appropriately classified, and a procedure established to facilitate appropriate release. This is not within a strict reading of the terms of reference, so it is likely that Clarke will not address the issue.
  • Independent review.
    There is already a private member's bill that has passed the Senate. Labor is not supporting it, on the grounds that they should wait for the Clarke report, as well as inadequacies in the bill. Clarke will recommend some form of continuing independent review of anti-terrorism laws, and an ombudsman process. He may, and should, recommend an independent oversight of ongoing investigations, though that might be a bit hard, and I don't think it was put to him in any of the submissions.
  • The public commentary & leaks.
    Clarke did not (I think) interview Keelty or the various ministers (apart from Andrews) who made prejudicial public comments. He should address the issue, but will do it in general terms, mostly concerning guidelines. These will have the usual effect. Leaking sensitive police information would already be an offence. He may recommend strengthening the legislation, but if he addresses it, it will probably be to enforce the existing legislation.
  • The inter-agency task force.
    A major part of the Queensland Police submission is concerned with the chaos that apparently reigned at the beginning of the investigation. (They blame the AFP, probably correctly.) Something like a permanent nucleus that can be expanded as required, with regular exercises. Systems need to be able to communicate with each other, at least. Procedures need to be implemented so that the various agencies can immediately bring their expertise and resources to bear on the investigation.
  • Training.
    For both the new legislation and procedures when implemented, and for what is currently in place and continuing.
  • Keelty.
    There won't be direct findings against Keelty. There could be criticism of his public comments, if Clarke goes there, and discussion of his management role, but no explicit finding against him. The findings against the AFP as a whole should be enough to see him gone pretty soon, though. Does anyone know when his contract is up?
  • The ministers.
    Andrews I've already discussed. Downer and the rest of the ministry won't, unfortunately, get a mention, except in the passing narrative. Their role was, as far as the terms of reference go, peripheral, and they don't make much appearance in any of the submissions. They certainly took a keen interest, and quite likely provided some "guidance" in the background. But they are a few layers removed from the operational action. To get to them would require not only increased powers, but lots of lawyers.
  • Other bits and pieces.
    Clarke will consider the extended investigation of Haneef ouside his terms of reference, unless he is really upset with the AFP, in which case they will get a blast for it. He may make a comment on the cost and scale of the original investigation, given that it started as a peripheral piece to the British investigation, and there was apparently never any significant evidence to take it further.
There is another possibilty. All the above is based on the assumption that Clarke does it straight, on the evidence, informed by the various submissions, and a little bit on the assumption that there was nothing too dastardly on Haneef's computer. Clarke could screw up, though it is not to be expected.

He could find that the investigation was all in a good cause, but unfortunately some of it was not technically lawful under our inadequate anti-terror laws. In that case, he could make a series of recommendations so that it could all happen again, only legally: relax the requirement for arrest to "it seemed like a good idea at the time"; make the down-time rules "as long as we want"; etc.

I'm actually quite optimistic. It would have been nice to go for Keelty and the pollies directly, but expensive and time consuming, possibly futile, and detracting from more important matters. I reckon the important things are the law, and getting the AFP (and other agencies) to operate in conformity with it. If Clarke has done his job, then there should be significant improvements in the law, and the AFP. Some of it might even trickle up to the pollies.

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This is just unacceptable

My dislike of the unbridled attitude of the media continues to increase.

Media articles, so often unnamed and therefore technically rogue opinions - should disgust any thinking Australian.

Like today's "Ex-Government will not apologise"!  No one named as the author of that insult to journalism and the public.

It goes on to say -

'Rather, Prime Minister Kevin Rudd should say sorry to former immigration minister Kevin Andrews, who was vindicated in the report by retired NSW Supreme Court judge John Clarke.'

Fair dinkum!

This journalistic twit, hiding behind the permitted abuse of truth and fact, claims that Kevin Rudd, whose criticism of the stupid behaviour of Kevin Andrews, and whose opinion was actually vindicated by the report by Judge John Clarke - should apologise to the incompetent Howard "New Order" clown.

In fact the honourable Judge was "mystified" at the behaviour of the so-called Minister and said so - albeit politely - no doubt to avoid the possibility of seeming to favour any future litigation.

The facts were that ASIO had advised Mr. Andrews and his department that there were no grounds for charging Haneef.

The obviously politically motivated action by this minister in removing Haneef's passport after he was released and locking him up again was nothing short of a blatant abuse of power.

The Haneef saga was mishandled by the incompetent Howard government from the start and is still unfinished. 

It must surely be accepted now that the Howard "Anti-Terrorist" laws (which have  the same intent as the Menzies' "Onus of Proof") are just more Liberal Party removals of human rights for purely political purposes.

Although the judge may have tried to avoid apportioning blame to the real culprits (the Howard cabinet), the continuing attempts by the media to cover up the disaster created by the little dictator and his henchmen will stand out to the average Australian as nothing but a convenience.

Indeed "The evil that men do lives after them" - and while it makes Australia poorer indeed, it shall not weary them - IF they have earned the protection of  the powers that be.


Clarke Report released

The report is here (2.1MB PDF). The government's response to the recommendations is here. The Australian's report is here

First impressions?

There are only ten recommendations, all stated very broadly, so the government has no trouble agreeing to all of them. They seem sensible, too, though I need to check the detail of one or two. From the reports, the AFP seems to have got off lightly, but that will be in the detail.

More later.

Waiting, with rising anticipation

It's now almost a week since the verdicts in the Bilal Abdulla trial, and today the ABC and the SMH have been reporting that the report's release is expected "early this week".

A cynic might think that the government is trying to bury the release over the Christmas break, but I'm sure it is just a matter of time zone and translation difficulties in communicating with the British.

If, however, McClelland is trying to bury it, it implies that it needs burying. My expectations rise with each passing hour.

Time for Clarke's report to be released

Car bomb trial jury retires

From The Scotsman.

After eight weeks of evidence, it might take them a few days, particularly since Mohammed Asha seems to have run a vigorous defence distancing himself. I've no idea how credible that is, or how damning the evidence against him was, but it could be something the jury finds difficult to decide.

The end in sight

The prosecution has begun its summing up in the Bilal Abdulla trial. The end of the trial, and hopefully the prompt release of the Clarke report, shouldn't be far away.

McClelland interview

McClelland was interviewed this morning by Virginia Trioli on ABC2 Breakfast. Here's the transcript.

According to McClelland, and it seems reasonable, the only thing delaying public release of the report is that the British want it held back until the end of the trial of Bilal Abdulla, which is in it's last stages. He is of the opinion that release would not prejudice the trial, but is deferring to the British sensitivities. Perhaps a little influenced by the reaction to his comments before all the Benbrika verdicts were in.

It's pretty hard to see how release of Clarke's public version could prejudice the trial. Bilal Abdulla is probably mentioned, but not much more, and only in the context that the British had arrested him, the AFP looked for links with Haneef, which were minimal, and some confusion arose. None of it goes in any way to Abdulla's guilt or innocence beyond the fact of his arrest.

The other thing of interest is that  "the Government has said, it has, and continues to have, full faith in Federal Police Commissioner, Mick Keelty". Findings against Keelty directly weren't to be expected, but this seems an indication that the criticisms of the AFP management are mild rather than robust.

So when will McClelland release the report?

In the press conference when he announced Clarke's appointment, he made it clear he was asking for a report that could be made public (with confidential supplements, if necessary). On that basis, it should only take a few days to release. All it needs is time for him to get on top of the report, and brief his colleagues. Any longer and it starts looking like he has something to hide, and the greater the demands on him for a detailed response. With an immediate release he can legitimately claim a need for time to consider the recommendations.

The main report should be in a form that can be released immediately. Anything that can't be released should be in confidential supplements. That includes details of the British role (which, in any case, is mostly outside the terms of reference). But this AAP report from the SMH says:

Mr McClelland said the government would talk with counterparts in the UK before considering whether to release the report.

It is likely a censored account will be released before the end of the year.

On reflection, the British would be among the "colleagues" that he needs to brief, and it would be unwise to commit to release before consulting them. Clarke may, after all, have let something slip into the public version that he shouldn't. Given appropriate down-time for the time zone differences and translation, that would add at least a fortnight, going by precedent.

Let's hope that Clarke has been careful. The basic facts and time-line of the obviously relevant British material is already public, from the AFP public submission and elsewhere. Anything further can go into the confidential supplements, so there shouldn't be a problem.

Covering up for the Brits

They are in the middle of the trial of Bilal and he has said that he was not involved in anything much at all.

Covering up for the Brits is ludicrous. Haneef and his cousin had nothing to do with it.

Facts versus intentions

Mark Sergeant: "Should it be there at all? The action has the same effects whatever the intention, and it is the act that the law makes criminal."

If you are saying there that the act is distinguished by its imputed motives, then you are absolutely correct. The provision shouldn't be there.

As I understand it, juries can only test facts, not intentions. So, if they're supposed to be judging facts, what has a person's intention got to do with anything? And who knows what that could be, anyway?

Hang on. I may have to sit down for a moment. I don't think Mark and I have ever agreed on anything before, have we?

Must be a mistake


Must be a mistake somewhere. I better read what I wrote again.

Facts? OK. Logic? OK. Relevant? Yes. Style? Passable.

It does look, Eliot, like there is something we agree on. I won't tell anyone if you don't.

It's a sickness - of course

Grasshopper: Oh wise, Master who is Eliot and why is he such an agreeable guy?

Master: I wouldn't waste my time with such matters, Gwasshopper, besides that Eliot guy doesn't know what he talks about. It would appear only those with a name that starts with "M" are susceptible to agreeing with Eliot. It's a sickness. It's a mystery, an enigma wrapped up in a red herring actually. But beware Gwasshopper, for it is the way of life to never, ever agree wih Eliot. Anyway why do you ask?

Grasshopper: Oh, no reason, but Master what do you think of my new lunchbox?

Master: Why gwasshopper, that is the mythical Haley Berry lunchbox, is it not? Where did you get it? I have heard about such a glorious thing but didn't know if it was real or who would produce such a wonderful idol.

Grasshopper: It is indeed the mythical Haley Berry lunchbox Master and I got it on E-Bay.

Master: But Gwasshopper it would have cost a fortune.

Grasshopper: Nah, only Tasmania and a big chunk of China, so it was well worth it oh wise Master, wouldn't you agree?

Master: Gwasshopper, I agree wholeheartedly, it was the most worthiest of purchases and you paid not too much. But Gwasshopper, who would be so generous as to part with a Haley Berry lunchbox for such an agreeable sum.

Gwasshopper: Why MMMMMMMMaster, it was Eliot.

Master: Oh shit, I feel ill, best have a lie down I think. Um, errrr, couldn't have a lend of Haley could I?.

Grasshopper: Of course oh wisest of Masters, of course.

Report handed over, not released yet

Clarke's report has been given to McClelland. "The Government will carefully consider the report before responding to its recommendations."

The press release gives no indication when, or even if, it will be publicly released.

The definition of a "terrorist act"

There is an important isssue I left out in the original piece: The definition of a "terrorist act". The primary definition is in the Commonwealth Criminal Code, and the relevant part is:

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;

Should it be there at all? The action has the same effects whatever the intention, and it is the act that the law makes criminal. It is at least arguable that including the intention in this way may have the effect of encouraging prejudice in the minds of both the community and investigators, while having no relevance to the criminality of the act.

Gerard Brennan put it this way in his keynote address to the public forum (39KB PDF):

If the terrible crimes proscribed by reference to that definition - killing or seriously injuring a person or causing serious damage to property or to an electronic system - were engaged in to advance the interests of, say, organized crime, or industrial espionage or - like the bombing of the "Rainbow Warrior" - to stifle dissent, would the crime be any the less reprehensible? The motive adds nothing to the criminality of the acts constituting terrorism. Indeed, it brands the advancing of a religious cause as an element in a heinous crime. Inclusion of the motivational element in the definition may easily be misunderstood as targeting Muslims, the vast majority of whom pride themselves on being peaceful citizens, sharing Australian values.

He takes it further:

And it is the Muslim community who, sharing the general consensus, are likely to be most effective in exposing any dangerous Islamic terrorists. It is the law-abiding consensus of Australian Muslims which should be esteemed and encouraged. Support of a religious cause should not be an element of a heinous offence. A law which leaves itself open to such an interpretation fosters dissent. And dissent can fester into an ambition to destroy the values which the law is intended to defend.

An alternative view was put in Ben Saul's paper (209KB PDF) at the forum:

Here I respectfully disagree with Sir Gerard Brennan that the motive element in the definition of terrorism necessarily leads to discrimination or undue impacts on free expression. The motive element operates as an additional safeguard which reserves the label of terrorism for only the most serious forms of political or religious violence, and it is no surprise that the federal Director of Public Prosecutions has argued for its repeal, which would make prosecuting terrorism easier.

I'm with Brennan, on balance. It is the specifics of the intent that make a terrorist act, but the act itself is what makes it criminal. If including the intent in the definition has adverse consequences, and I agree with Brennan that it does, then it can safely be discarded from the definition. There is a further dangerous effect, not dealt with in the Brennan quote. The enforcement and intelligence agencies are likely, as well as sharing the common prejudice, to embark on profiling and other targeting techniques with inadequate controls to avoid the common abuses.

It is doubtful that Clarke will go this far into philosphical issues, particularly since he has lots of immediate detail to address. He is more likely to leave it to an independent reviewer, part of whose brief will be a more general overview of the law.

The End of the War

I was bemused when the inquiry was announced, as the behaviour was pretty normal for the way the power-less are treated by our bureaucracies.  I came to suspect that the purpose of the inquiry was actually to send a message from the powers-that-be to the Anti-Terrorists that the usefulness of their ideology was over. As such, whatever the findings of the inquiry, its purpose has already been served.

Unfortunately, Obama/the US do not seem to have reached this stage yet.

Kevin Rudd, of course knows the value of War as a means of suppressing criticism. Unfortunately, he’s been overusing it, and the opposition seem to have woken up to it.  

The Anti-Anti-Terrorism War

What is surprising to me, Jay, is that the bureaucracies managed to screw up so badly, so publicly. I'm not sure that "bureaucracy" is the right word for the cowboys of the AFP, though. The screwing up is common, but usually we only get hints. The publicity is also common, but usually they have a better case to trumpet.

I think you are right about the message to the Anti-Terrorists, but don't discount the potential for the findings to make improvements to the bureaucratic machinery. And the Labor politicians still feel they have to use the anti-terror rhetoric, so the message gets mixed.

Obama is making very promising noises regarding Guantanamo Bay and torture. How far he can take the US with him is still to be seen.

A contradiction

This is just something I noticed in my research, and I don't recall anyone else commenting on it.

Recall that, at Haneef's bail hearing on 14 July 2007, the CDPP alleged that the SIM card that Haneef gave to Sabeel Ahmed had been found in the Jeep in Glasgow. On AM - 20 July 2007, Rafael Epstein reported that this was wrong, and the SIM card was in Sabeel Ahmed's possession in Liverpool. Now, read on.

In his joint press conference (924KB PDF) with Mick Keelty, Damian Bugg, then CDPP, responded to a question asking how the CDPP officer in Brisbane learnt of the SIM card error (page 9 of the PDF):

No. The error was discovered before the AM program,...

...We were aware of it before it was published in the media.

Which is odd, because in the CDPP submission (2.2MB PDF) it says (par 15.9, page 12):

The CDPP Brisbane Case Officer was first alerted ... by media reports published on or about Friday 20 July 2007.

Which is when the AM report went to air.

The CDPP submission to the inquiry directly contradicts Bugg's statement in the press conference.

The AFP, who hadn't bothered to send an officer familiar with the case to the bail hearing, also first became aware of the error through media reports. Here are their words (225KB PDF, at page 31):

Given that this was a bail mention matter, no AFP case officer was present in the court at that time and so the mistakes were not identified by the AFP until they were raised in the media.

Change is possible

Marilyn and Michael, my sights are probably set a bit lower, which is why I can be optimistic. I'd love to see some AFP officers in the dock, but it was never very likely, even if Clarke had full powers. Without the powers, it's more an administrative review, but that has just as much potential to do some good. Considering the Oil for Food inquiry, maybe more.

The minimum that will come out of the inquiry is a string of recommendations on legislative and procedural changes which, if implemented, will be a great improvement on what we have now. I think most of the changes probably will be implemented. There should also be strong criticism of the AFP and its cowboy culture, along with recommendations on getting it under control. I don't think Keelty will be around much longer, although a way may be found for him to leave relatively gracefully.

There will still be a lot wrong, both with the laws and the AFP, but we have a fair chance of major improvements in both

Foreign relations

I think your predictions are fairly spot on, Mark. No worries about the computer... if there was any more than the list of names, we'd have heard about it by now. Speaking of leaking information, I do hope mention is made of the AFP letting an News Ltd photographer gambol through Haneef's flat after the search, and portray the "evidence" as proof of a panicked flight.

The intelligence-sharing confidentiality rankles. Sure, I understand that information flows have to be protected, but the fact that our police are able to operate in this country on information we're not allowed to know about. Again I cite Scott Parkin and those peanut butter sandwiches that were able to appear in Newsweek but unable to be referred to by ASIO. If the information is dodgy there's no chance of repudiation while the data is under a cloak of secrecy. Mind you, I've been watching US prosecutors use similar tactics regarding UK-held information regarding Guantanamo torture. It appears to me that the intelligence protocols are more used "in the national interest" of intel gatherers not appearing as dickheads.

Share the intelligence

Just on the intelligence-sharing, Richard. David Barnett had some relevant remarks at the public forum (58KB PDF).

On the Migration Act:

...suppose that the New Zealand police were to send the Minister a copy of an applicant’s criminal record in that country and, in accordance with usual practice, mark it "confidential". Clearly it should not be confidential from the applicant - the confidentiality is only to protect his privacy. Yet this is what the Act requires.

/On the Haneef case:

Privilege prevents me from disclosing much about the Haneef case in the Federal Court. I can disclose, however, that deference to the concerns of the British Police about the confidentiality of some quite innocuous material caused me difficulties in running the Commonwealth case as did AFP confidentiality about an Internet conversation the details of which were substantially in the public domain. In short, the provisions are too absolute

/There are cases were confidentiality is required. There are cases were it is not required, except by rigid laws and protocols. And there are cases where the agencies find it very convenient indeed. None of which excuses the disgraceful AFP public submission.

A big part of the problem is that normally we never find out about it, more or less by definition. If we do, it tends to be long after the fact, when everyone has moved on to other things. One way around the real difficulty might be an independent overseer, along with appropriate legislation and protocols. But the overseer would need all the appropriate clearances, the relevant experience, etc - as likely to be the fox as the guard dog.

I said in the piece that intelligence sharing was outside the strict terms of reference, but it occurs between domestic agencies too, so it might get a run.

Sadly, I feel M.Shepherd is correct

The feeling that seems to be sweeping both the US and Australia is that the Howard/Bush years are a nightmare people want to put behind them.

The first installment of The Howard Years is actually so light on content, it looks like being one of the great ABC duds. Watching a guffawing Reith brought way too much horror for me. Not sure I can stand another episode. Clarke's enquiry has already been nobbled, politically. Haneef may as well just take the money and run. The day an AFP officer appears in court is the day I'll eat my new beach hat.

Choice of nightmares

Michael de Angelos, "The feeling that seems to be sweeping both the US and Australia is that the Howard/Bush years are a nightmare people want to put behind them."

Not to mention the Rudd/Obama years.

Barack Obama has named Rahm Emanuel as his chief of staff and he is bringing in Madeleine Albright to be part of his transition team. It looks like Obama is bringing back all of our favorites from the Clinton administration. Except for Monica Lewinski.

Stimulating the private sector

Alan Curran: "Except for Monica Lewinski."

Could be worse. If I'm not mistaken, that's Peter Costello standing behind Jennifer Aniston in the picture with this item.

Nothing will happen

The first part of the Howard Years on ABC shows the laws that Howard broke along with the sycophants and losers who grovelled at his feet.

Nothing will happen from this inquiry.

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