A Dangerous Precedent


Last Monday, Dr Mohamed Haneef was granted bail after being held in custody for 12 days without charge. Desperate to win a victory on something, anything, the Federal Government then revoked his visa and detained him under immigration laws.

Prior to 1991, it was the law in Australia that a person arrested by a police officer without a warrant needed to be charged and then brought before a justice as soon as practicable, unless released on bail. So a person arrested in the morning was taken before a court in the afternoon and a person arrested in the afternoon was taken before a court the following morning, at the latest. No arrest could occur without the police having a reasonable suspicion of the person’s involvement in a crime.

Thanks to Fiona Katauskas

This changed in 1991, when the Federal Parliament passed a law that allowed an ‘investigation period’ of four hours from the time of arrest within which the person must be charged. An extension could be obtained from a magistrate or if unavailable, a justice of the peace (JP), to allow up to a further eight hours if sufficient evidence was likely to be obtained within the extended time. The new laws also allowed down-time periods which stopped the investigation clock ticking.

In late 2001, in the wake of the World Trade Center attack, the Howard Government increased the extension period for terrorism offences only, from eight to 20 hours, making a total of 24 hours. Then, in July 2004, three months before the last Federal election, the Howard Government made an extraordinary change to the down-time provisions.

It enacted the section of the Crimes Act under which the 24-hour period can be extended by making an application to a magistrate (or if unavailable, a JP!) either in writing or by electronic means to ‘preserve or obtain evidence or to complete the investigation’.

Importantly, there is no time limit on the extension that can be granted, as long as the investigation is ‘conducted properly and without delay’.

So a magistrate or JP, acting as an arm of the executive government and not as a court, can extend the period of detention for weeks (or theoretically indefinitely) before a person is required to be charged or released.

This is what happened to Dr Haneef over the last two weeks.

It seems clear that the extended investigation resulted in either no further evidence against him or very little. The question arises: why was he not charged shortly after being arrested?

There are two possible answers. The police either felt they had insufficient evidence to justify the charge; or they had sufficient evidence to justify it but preferred to keep Haneef without charge (and access to bail) in the hope that more serious charges would be available after further evidence was obtained. If the former is the case, the charge looks like a face-saving exercise.

There are two  more concerning aspects of this saga. The first is the charge brought against Haneef itself: Supporting a Terrorist Organisation.

The offence (Section 102.7(2) of the federal Criminal Code 1995) is as follows:

(2) A person commits an offence if:
(a) The person intentionally provides to an organisation, support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of ‘terrorist organisation’ in this division; and
(b) The organisation is a ‘terrorist organisation’; and
(c) The person is reckless as to whether the organisation is a terrorist organisation.

The definition of ‘terrorist organisation’ includes: ‘An organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs)’

Incredibly, Section 5.4 defines recklessness to include where the person is ‘aware of a substantial risk’ that a terrorist organisation ‘exists or will exist‘ (emphasis added).

A SIM card belonging to Haneef was allegedly found in a car used in the Glasgow terrorist attack. According to reports, Haneef gave the card to his second cousin, a suspect in the attack, when he left Britain for Australia.

But Haneef came to Australia in September last year, some nine months before the event. For him to be convicted, his distant relative and his associates  would need to  have already formed  a terrorist organisation at that time. However,  under the definition of recklessness, whether or not Haneef was aware of this is irrelevant. If last September, when he gave his cousin the card, Haneef was aware only of a risk that a terrorist organisation would later exist, that may be enough. This is a vague and unsatisfactory basis for conviction for an offence which carries a maximum penalty of 15 years jail.

It is bad enough that such a serious offence can be satisfied by recklessness as to the existence of the organisation, but it seems extraordinary that a person may be convicted if he has a vague notion that it may later exist. A person convicted of the offence may end up spending years in jail for a simple error of judgement or an inability to predict the future!

The second concerning development is the Government’s cancellation of Haneef’s visa because of his suspected association with persons involved in criminal conduct. However justified in law, this is just guilt by association.

Fortunately the Constitution requires that in a Federal criminal trial, there must be a jury and its verdict must be unanimous. Even the Howard Government can’t cancel that ancient right.


Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.