Julian Burnside QC

The treatment of Dr Mohamed Haneef is very disturbing.Dr Haneef spent 12 days in custody waiting to be questioned by Police.  He was held under provisions which do not appear to contemplate such lengthy detention without charge.  When, eventually, the police started questioning Dr Haneef, they apparently found out no more than they already knew: he had given his cousin a pre-paid SIM card which still had some credit.  Dr Haneef could no longer use it because he was leaving England.  A year later the SIM card was found in a car used by a terrorist.

It is a thin-looking case which will depend on showing that Dr Haneef had reason to think one year ago that the SIM card would be used by a terrorist organisation.  Mr Keelty described the case as being "at the margin".  Presumably the same thinking persuaded the magistrate that Dr Haneef should be bailed pending trial.

Prolonged detention for questioning is troubling: it is difficult to square with our assumptions about liberty.  But things soon got much worse: as soon as Dr Haneef was granted bail, Immigration Minister Kevin Andrews cancelled his visa. 

A visa permits a non-citizen to be in Australia.  The power to cancel a visa is a necessary one: but its purpose is to terminate a person's right to be in Australia.  When a person's visa is cancelled, they must be deported as soon as reasonably practicable.  Pending deportation, they must be held in detention.  The power to cancel a visa and place the person in detention is in aid of the power to deport the person.

If the Minister had cancelled the visa with a view to deporting Dr Haneef, no-one could complain too much, putting to one side that it is done on secret evidence which Dr Haneef is not allowed to see.  But Minister Andrews has cancelled Dr Haneef's visa and does not intend to deport him in the foreseeable future.  On the contrary, Minister Andrews has cancelled the visa to help the Attorney General and the Federal Police: they want to prosecute Dr Haneef but they want him locked up in the meantime.  Getting the case to trial is likely to take several years.  By canceling Dr Haneef's visa, the Minister has ensured that Dr Haneef will remain in custody pending trial, despite the grant of bail.  On the face of it, this is a serious misuse of power for an ulterior  purpose and an illegitimate interference with the process of criminal justice. 

The misuse of power is a dangerous thing in any event, but in the case of Dr Haneef it gets worse.  The Minister has publicly branded Dr Haneef as a person of bad character.  That will make a fair trial more difficult to achieve, especially in the prevailing climate.  In addition, Dr Haneef will spend the next couple of years in a detention centre.  There is no detention centre in Brisbane, so he is to be sent to Villawood in suburban Sydney.  Perhaps he will later be sent to Christmas Island.  At least they cannot send him to Nauru, unless they amend the Migration Act.

The first an most obvious result of all this is that Dr Haneef will be held in conditions which are much more uncomfortable than in a modern prison.  The second is that Dr Haneef will be a very long way away from his Brisbane-based lawyers.  As a former barrister, Andrews must know how hard it is to prepare a case if a defendant is held is hundreds or thousands of kilometres away from his defence team.  Legal aid is so poorly funded by this government that it is unlikely to pay airfares for his lawyers to travel between Brisbane and Sydney as they go through the thousands of documents said to have been collected in the course of the investigation.  The inevitable and foreseeable result is that Dr Haneef's defence has been greatly prejudiced.  In such a doubtful case, the government no doubt wants to stack the deck.  It is the way they work.

The grim paradox is that Dr Haneef would have been much better off if he had been refused bail.  Not many people can say that.

To add to this sorry saga of calculated injustice, Dr Haneef will be liable for the daily cost of his incarceration in Villawood, in circumstances much less congenial than he would have faced, at no cost, in a Brisbane gaol if bail had been refused.  If it takes two years for the case to come to trial, Dr Haneef will be liable to the government for approximately $88,000 for his 'accommodation' even if he is acquitted.

Where does the presumption of innocence get a look in?

Nowhere apparently.  The Minister has hinted strongly that if Dr Haneef  is acquitted he will be removed from Australia anyway.  He will not say why, apart from references to bad character.  It seems that although a charge is enough to show bad character, an acquittal will not establish good character. 

The implications of the Haneef case are very alarming.  It is another indication of the things which the Howard Government is prepared to do, especially in an election year.  The Immigration Minister is willing to lend himself to the police.  The Attorney-General is willing to take advantage of the Minister's  impropriety.  Dr Haneef's ability to defend himself has been wilfully compromised.

The character of any government can be measured by the way it treats those who are powerless.  This government will use every dirty trick to crush Dr Haneef, regardless of his guilt or innocence.

In the war to save democracy we are at risk of throwing away its most important features.