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The Haneef Inquiry public forum

The Haneef Inquiry public forum
by Mark Sergeant

On Monday 22 September, the Clarke Inquiry into the case of Dr Mohamed Haneef held a Public Forum in Sydney. Reports have appeared in the SMH (Concern over anti-terrorism laws) and on the ABC (Haneef police 'pushed legal boundaries'), and it made the SBS TV news.

Here is my belated report on the forum, exclusive to Webdiary.

I was impressed by Sir Gerard Brennan's keynote address (39KB PDF). I think he rather enjoyed talking about what the law should be, rather than what it is. In a balanced and judicial way he argued very strongly that effective protection from terrorism must depend upon community consensus.

To create and maintain such a consensus, it is not enough to rely on community fear. Fear is the most malleable of emotions, especially in politics. Yet fear can lead us in the wrong direction. It can lead us to destroy the freedom which marks our way of life and which terrorists would hope to destroy.

Eroding the "traditional values of the common law" puts at risk the consensus, and so is likely to be counter-productive, in addition to the damage it does to our freedoms directly. Sir Gerard pointed out, as did others, that it may be that when we say we are willing to compromise our freedoms, we may mean that we are "willing to compromise the human rights of others, believing that the laws and practices we have accepted will have no impact on ourselves".

The Law Council of Australia paper (262KB PDF) was presented by Ross Ray QC. His argument was not about "pushing the boundaries" as the ABC report has it, but of the AFP going well beyond the boundaries of the law. On the publicly available evidence, the detention of Haneef was unlawful from early on. It all gets a bit too technical, but the basic point is that the arrest and continued detention had to be based on "belief on reasonable grounds". The "reasonable grounds" part is an objective matter, and from early on it was clear that there was no objective basis on which to ground a belief that Haneef had committed any offence. At least on what is publicly available, and the publicly available material suggests that there is nothing much further in what the AFP knew.

The second paper (58KB PDF) was presented by David Bennett AC QC, the former Solicitor General. He appeared for the government in the Haneef visa case and appeal. His major concern was to argue against the universality of moral or ethical principles, and that, instead, a balance must be found. He did not, as I recall, argue for any particular balance point - certainly not that the current law has it right. Philosophically interesting, and it got up the nose of the Socialist Alliance at the forum, but probably not much help to the Inquiry.

Bennett also raised a practical issue - the difficulty under the Migration Act (and in general), of releasing information from other agencies or governments that is marked confidential, even where the release would be in the interest of all parties.

Dr Ben Saul's paper (209KB PDF) was concerned with the Human Rights side of things: indefinite detention; arbitrary exercise of executive power, and the breadth of terrorism offences.

Strict criminal offences which capture remote preparatory conduct and which do not allow for the ordinary behaviour of human beings are ill-suited to regulating terrorism; such offences risk both criminalising the innocent and are likely to be seen as increasingly ineffective and illegitimate...

Instead, the focus should be on those who are directly responsible for violence, not those who are far removed from it or marginal to it...

Who knows, he may get quoted as an authority in the Benbrika appeals.

Nicholas O'Brien, presenter of the last paper (140KB PDF), used to be in charge of International Counter Terrorism in Special Branch, New Scotland Yard. After distinguishing modern, Al Qaeda based terrorism from the traditional sort, he spent a fair while emphasising the complexity and enormity of modern terrorism investigations (a feature shared with any sufficiently major crime, I'd say). The focus in the end, though, was on human rights and effective oversight of counter terrorism powers.

The issue of human rights is fundamental when considering anti-terrorism legislation. Draconian legislation will serve as a recruiter to terrorist organisations, yet police need the powers to protect the most important human right: the right to life. Human rights can be safeguarded with appropriate judicial oversight of anti-terrorism legislation.

It was all a bit strange, really. Think of it as a debate, with a neutral introduction then two speakers for either side, defending or opposing the current legislation. The "neutral introduction", from a former Chief of the High Court, no less, was anything but. The opposition stuck to the script, and attacked the legislation. The defenders didn't bother to defend it. Bennett argued for balance, and by omission accepted that the current setting is wrong. At one point he said he had only been arguing his client's case. O'Brien argued for effective oversight, reviews and sunset clauses - features noticeably absent from the current scheme.


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Saul, Saul ... why persecuteth thou me, Saul?

In view of the findings of the experts commenting at this forum, it seems we learn not a lot new, or at least some us that is ( with certain others conspicuously elsewhere it seems, it's more like butting your head up against a brick wall, but that's another story! ).

A couple of things I hope other bloggers might seek to help this writer with, as to clarification.

Firstly, the unfortunate woman harassed by the gestapo as to her intention or otherwise of attending the thing. Why did she not just tell the bastard to F- off?

Or could they haul her off to the dungeons also?

Secondly, Clarke's refusal to consider compulsive powers to get at the truth quicker. Why pass up a sure fire route to the truth when dealing with at least some people who appear to have serial histories of a pathological nature as to recognition and expression of the truth, rendering them obvious strangers to it?

I wish I had coercive powers

She seemed much too polite to use language like that, Paul. However provoked.

I'm not that worried about Clarke's lack of coercive powers. It would be better if he had them, but he can do most of what he needs to without them, probably quicker and with fewer lawyers. . The drawback is that he is unlikely to do much in the way of adverse findings against individuals, and he probably can't chase up the chain of command as far as he should (quite a big drawback, that). It's a pity, but don't expect findings that Keelty or Andrews did anything wrong.

The reason I'm still not that worried is that what is on the public record is overwhelming. I don't see how the AFP can successfully argue they were acting legally, or that they didn't stuff up very badly, whatever is in their confidential submission or their evidence. None of the public submissions attempts any defence of current law or practice as demonstrated in the Haneef case. (Except for the Immigration submission on its role.) The various government submissions are all pointing at AFP, saying "it was them". There may be interesting material in the AFP submission, but they can't prove that what is on the public record didn't happen.

Given that, I don't see how Clarke can avoid recommending major improvements to law and procedure, and making major criticisms of AFP's management of the whole fiasco. So while there probably won't be a personal finding against Keelty, there should be, at least, a finding that his management was incompetent.

The problem the AFP has is that when Clarke asks them a simple question based on what is publicly available, they don't have an answer that doesn't make them look bad. If they decline to answer, Clarke goes with the public record. It means he mostly doesn't make definitive findings against individuals, but he does get to make the same finding against the AFP as a whole. I reckon those findings are more important,

So it is down to Clarke to do his job, and I don't reckon the extent of his powers makes much difference.

And the lessons are

Be nice to the checkout person and hug Claude, Malcolm, as though every day could be his last.

Yes, throw it out

You make a good point:

"After distinguishing modern, Al Qaeda based terrorism from the traditional sort, he spent a fair while emphasising the complexity and enormity of modern terrorism investigations (a feature shared with any sufficiently major crime, I'd say)".

Scotland Yard announced two years ago that the UK now had a dozen well organised criminal gangs (some run by the Russian Mafia who have decades of experience in dodging the law) that had turnovers of over a billion pounds and that the law  was basically powerless in touching them.

Is "terrorism" a diversion from the inability to take action elsewhere?

The first indication that the Haneef case was going to turn out to be a turkey was when the Scotland Yard terror expert jumped on a plane and fled 24 hours after she arrived in Brisbane.

At the time of the introduction of these draconian laws we all said it's future governments' use of them that could be the worry, although no-one thought it would happen so soon with the hapless Haneef.

But the new Rudd government seems happy to keep the laws on the books - unless they are playing a waiting game to see what the outcome of this enquiry is. Imagine if a really sinister lot got in!

One aspect the Haneef affair did show, after their huge budget increases and an endless ream of press releases by the hopeless Mick Keelty - the AFP are bizarrely incompetent. Heaven help us if real plotters come along.

Who'da thunkit?

The perfect example of police energy misdirection is that while NSW police were apparently harrassing potential demonstrators, a bloke had stockpiled enough household ingredients to blow up a supermarket.

[SMH extract]

His stockpile included 12 kilograms of potassium nitrate, six or seven kilograms of chlorine, two kilograms of sulphur, a barbecue gas canister and brick-cleaning solution, police said.

If his alleged plot had come to fruition, the stockpile would have been used to incinerate the Coles supermarket in Bondi Junction in a dramatic payback against his employer.

One wonders if the bloke would have thought of arming himself in such a manner had it not been for terrorism propoganda.

Well I wouldn't have

When we were making explosives in primary school, I had a friend (we both ended up doing first level chemistry) who lived in a house fronting on to Double Bay. In order to make gunpowder, we needed to collect the charcoal washed up on his beach, and blend it with other ingredients. Now, sulphur is not hard to get but I had to get Dad to get the potassium nitrate from Selby's the chemical suppliers (one of my favourite childhood haunts).

Now, with all this terrorism bullshit, I've just googled it and found out that you can buy the fucking stuff on e-bay.

None of us is safe and, frankly, my dear, who gives a damn?


Malcolm, don't forget the iron filings and saltpetre – they add a bit extra.

Potassium Permanganate also was great to play with, but I only used to blow up the old man’s beer cans. Never did graduate to 747s.

NSW Counterterrorism at it again

Mark, thank you.  Looking forward to reading these later today.

Did you see the background story going on?

[ABC extract]

Anna Samson, from the Stop The War Coalition, says an officer who identified himself as being from the Counter Terrorism Command told her he had intelligence a demonstration was planned at the forum.

She says he wanted to know whether she would be attending any such protest.

Ms Samson says no protest was planned and the actions of the officer were unjustified.

"I thought that this was particularly intimidatory, that this was a public event," she said.

I suppose that with APEC a year gone, the Haneef investigation finally dropped, everyone's getting a bit bored. They need to be given new jobs.


That contribution from Anna Samson left the panel nonplussed, Richard. Possibly the middle aged men in suits a few rows in front of me knew how to handle it. They were welcomed as from the government, and not expected to speak or take questions (and they didn't). The name tag of one identified him as an Assistant Commissioner, but not the organisation.

There was a demonstration, as I have seen a picture, but I used a different door, and missed it. It's a bit of a puzzle why the Counter Terrorism Command was interested, and why they disclosed their "intelligence". Surely they wouldn't try intimidating community organisations, would they?

My take?

Haven't read any of it and didn't have time because I had other things to attend to and couldn't find out where it was being held anyway - and lunch beckoned.

Sir Gerard is a straight down the line Queensland bred Common Lawyer more in the tradition of the Founding Fathers than Judge Jeffries.

David is a serious civil libertarian.

Saul is a very good singer.

None is a soldier.

Don't know the rest.

What might it all mean?

The defence of the realm must remain paramount. There is no current need to defend the realm by legislation. Throw it all out.

serious civil libertarians

Sir Gerard struck me the way you describe him, Malcolm, although I don't know if there is anything peculiar about Queenslanders. Very much the Common Law. Not too good with mobile phones.

If David Bennett is "a serious civil libertarian", then he reminds me of Ruddock - too long working for his masters. His primary argument was for the compromising of civil liberties, on the reasonable grounds that liberties may conflict, one with another. He left the balance point open, but emphasised what Ben Saul called "the most extreme, remote and speculative risk, rather than a measured appreciation of the danger".

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