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.
For both the new legislation and procedures when implemented, and for what is currently in place and continuing.
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.