Guilty Until Proven Innocent

Whether Dr Mohamed Haneef is ever charged with a criminal offence or not, he will go down in Australian legal history.

There is little doubt that, exceptional cases aside, Haneef is the first person ever to be detained for more than 24 hours without being charged with a criminal offence. (The exceptions are where a person is seriously mentally ill, suffering from a highly contagious disease, is a member of the armed forces subject to military discipline, in breach of our immigration laws, or is an enemy alien during wartime.) 

The circumstances of Haneef’s detention are clouded in mystery.

Until the World Trade Centre attack in 2001, apart from the above exceptional cases, no person in Australia could be imprisoned without charge for longer than 12 hours.

The reason for this strict principle of ‘no detention without charge’ was to ensure that detention was subject to the supervision of an independent court. The independence of courts and the public nature of their proceedings are vital to democracy not just because they ensure the safety of detainees, but because they also act as a necessary check on the power of the executive government.

However, the Howard Government has made three significant changes to the law since the 9/11 attacks that have undermined this principle. The first was the extension of the 12-hour period in the Crimes Act 1914 in which police could detain someone without charge. It is now 24 hours in relation to alleged terrorist offences.

The second change gave ASIO unprecedented powers to detain persons, including non-suspects, in secret for up to a week for interrogation about a terrorist offence. Former Chief Justice Gerard Brennan attacked these powers last week and his retired colleague Michael McHugh has said they may be unconstitutional.

The third change was the introduction of preventative detention legislation in 2005, which allows a person to be detained for 48 hours to prevent an imminent terror attack or to prevent the destruction of evidence of a recent terrorist attack. At the time, the Prime Minister also convinced the Premiers to pass State legislation extending preventative detention for up to two weeks, because Philip Ruddock had received advice that Federal legislation for such lengthy detention would be unconstitutional.

We don’t know under which of these powers Dr Haneef is being held. If a preventative detention order has been issued it is required to be kept secret, apart from the detainee’s family being told that he or she is ‘safe but unable to be contacted for the time being’. The same secrecy surrounds an ASIO detention warrant.

It’s likely that Dr Haneef was taken into custody by the police on Tuesday last week under the Crimes Act. However, at some time since then, it is likely he has either been detained under a preventative detention order or ASIO has detained him.

The legislation relating to preventative detention was severely criticised when it was introduced in 2005. At the time, the current Minister for Local Government in the Iemma Government, Paul Lynch, said about his State’s Bill:

This is a bad Bill. It is wrong in principle … these laws attack traditional Australian freedoms and protections. They are corrosive of Australian democracy … the Attorney-General [Bob Debus] was quoted as saying something to the effect that these laws were originally something of which Adolf Hitler would have been proud, but they were now simply shithouse. I respectfully agree with the Attorney’s view.

A park bench in Brisbane  which Dr Mohamed Haneef allegedly used last month while feeding pigeons.

The legislation had the following defects:

Detained persons are not entitled to see the documents upon which an interim order was obtained, merely a copy of the order and a summary (prepared by the police) of the grounds on which it was based. The summary is further limited by allowing the exclusion of ‘material likely to prejudice national security’.

Detained persons’ communications with their lawyers are monitored.

The ‘issuing officer’ needs only to be satisfied on the balance of probabilities rather than the criminal standard of beyond reasonable doubt.

Hearings will be closed to the media and publication of information about it may be suppressed.

The rules of evidence do not apply and hearsay evidence is therefore allowable.

There is no requirement for any of the police evidence to be provided to the detained person prior to the hearing.

The police make the application, not the independent Director of Public Prosecutions, who usually prosecutes serious criminal offences.

And importantly: the person making the order in Queensland acts in a personal capacity, not as a member of a court. He/she is cherry-picked by the government and is not, therefore, independent. This is executive detention. At no stage has Haneef come within cooee of a court.

However, if former High Court Judge McHugh is right, there is a real question as to whether allowing Magistrates to act in a ‘private capacity’ is constitutional.

The problem is that it allows judge-shopping by governments to obtain the ‘right’ judicial officer rather than going before an independent court. Last December, McHugh said he thinks the High Court may now rule against it.

Paul Lynch was absolutely right — this is just bad legislation.

It’s possible that Haneef was involved in the recent English terrorist attacks. But we do not know that. If the Federal Police had even a skerrick of evidence after a week of examining his possessions, they would have charged him. If a single email exists on the doctor’s computer revealing that he had even the most tangential involvement in those attacks, he could have been immediately charged.

The other worrying matter is that the Federal Police have been able to dribble out pieces of information to the media, resulting in reports that have blackened Haneef’s reputation and have associated him closely with the alleged English terrorists.

There are people who say that these laws are necessary. The difficulty is that no one has made any cogent case for them. Haneef could have been released after 24 hours, then been placed under surveillance with his telephone tapped, and he would have been arrested immediately if he had broken the law.

Surely that would have been preferable to the first use of this bad legislation. The detention of anyone in these circumstances leads the public to believe that the police must have evidence to justify it. It is a gross breach of the Common Law right to be presumed innocent until proven guilty.

It is a further gross breach of the right to personal liberty of Haneef, who has not been accused of a criminal offence and seems highly inadvisable given there are huge doubts about the constitutionality of the legislation. If the laws are later found to be unconstitutional then evidence gathered during an unconstitutional incarceration may be excluded from any trial as illegally obtained.

Former Chief Justice Brennan got it right last week when he said: ‘We must never allow fear — that most malleable of political emotions — to transfer the protection of individual liberty from the judicial to the executive branch of government.’