So much for Rudd's 'full judicial inquiry'

In May of this year, I worked with others on the submissions on behalf of Dr Haneef to the Clarke Inquiry. They were delivered on May 23.

I will draw on those submissions to give you some idea of their main contentions. Of course, as a barrister engaged in the ongoing process of the Inquiry, it is not my role to express personal opinions about the matters contained within the purview of the Inquiry. I am only conveying to you observations and conclusions argued for in the submissions.

Errors, omissions and misleading statements

One of the reasons why Mr Bugg reviewed the case against Dr Haneef was that factual errors in the prosecution had become evident through the media.

The submissions made on Dr Haneef's behalf contain a detailed analysis of the different factual statements made by government agencies against other documents and the now known facts. In carrying out this analysis, we were startled by the degree of factual error that we discovered. Here are just three of the factual misstatements identified in the submissions.

The first is the repeated failure of authorities to communicate the fact that Dr Haneef attempted to ring a UK investigator, Tony Webster, at least four times on the afternoon of the night he was arrested to answer any questions Mr Webster had for him.

The second is the failure, even at this late stage, by the AFP to acknowledge the receipt by them of the Kafeel email which exonerated Sabeel Ahmed of any involvement in or foreknowledge of terrorist activity and, by extension, exonerated Dr Haneef.

The third involved the statement that the SIM card had been found in Glasgow in the burning jeep. A mis-communication in instructions can always occur. What is alarming about this error is that no one corrected the public record until ABC journalist, Raphael Epstein, broke the story six days later. This raises questions about the way the AFP conducted itself in Dr Haneef's case. And it does not explain why the error was allowed to persist in the public mind for another four days until the error was corrected by an ABC journalist.

Ignoring the law

The submissions also seek to test, on the basis of the known facts, the legal validity of the various decisions made concerning Dr Haneef. These include the decision to arrest; the decisions to apply for detention orders; the decision to charge Dr Haneef; and the cancellation of Dr Haneef's visa. I will discuss here only the decision to arrest.

Section 3W Crimes Act 1914, under which Dr Haneef was arrested, requires that the arresting officer hold a reasonable belief that, in this case, Dr Haneef had committed the offence for which he was being arrested.

Part 1C allows, upon a lawful arrest, a person to be detained for very limited purposes. The detention is for the investigation of the offence for which the person has been arrested or another terrorism offence which the investigating officer reasonably suspects the detained person may have committed.

There are several touchstones by which one may judge the decision by the arresting officers to arrest Dr Haneef. Mr Bugg found no reasonable basis to anticipate a conviction on July 27. When Mr Ramzi Jabbour, with the assistance of his superiors in Canberra, made the decision to charge - against the advice of the Queensland Police Service and despite ASIO’s contrary opinion - he chose to charge Dr Haneef with a less serious offence than the offence for which he had been arrested. The difference was that the charge only alleged that Dr Haneef was reckless about whether the organisation to whom he had given his SIM card was a terrorist organisation. The offence for which the arrest was made alleged that Dr Haneef knew that the organisation was a terrorist organisation. Mr Jabbour, therefore, concluded that the more serious offence, the subject of the arrest, was not even remotely available. He must have concluded that recklessness rather than knowledge was the most that could be suggested about Dr Haneef's state of mind.

The analysis contained in the submissions suggests that the arresting officers had very little information when they arrested Dr Haneef. They may have been suspicious that he was leaving Australia (despite the fact that he was travelling in his own name to his home in India, having arranged seven days leave from his job and made repeated attempts to contact a UK investigator who, he understood, wanted to speak to him). But whether that amounted to a reasonable belief that he committed the offence for which he was arrested is a very different question.

By the close of the following day Dr Haneef provided full explanations of the matters that may have given rise to suspicion. All of the factual matters were either confirmed by documents in their hands or easily checkable by a few phone calls to the Gold Coast; to India; and to the UK.

There is very little evidence that the checking was done. There is evidence that the most exculpatory information, like the calls to Mr Webster and the Kafeel email, was either ignored or suppressed. The duty in s.3W(2) to release Dr Haneef, if a reasonable belief was no longer available, seems to have been either not adverted to or ignored.

It seems that important decisions in this case were being made by management and not by the investigators who were being asked to make the arrests and the detention order applications.

Options, options, options

Dr Haneef's lawyers always assumed that the decision his visa be cancelled, thereby, facilitating his continued detention, was a panic stricken response to the sudden prospect that he might be granted bail.

However, a different picture is portrayed in the submissions.

On July 3, the day after Dr Haneef's arrest, the minutes of the whole of government National Counter Terrorism Committee show discussion about the prospect of seeking a Protective Detention Order (PDO) for Dr Haneef. The consensus of this and later discussions was that there was insufficient evidence to support these options.

The continued detention without charge under part 1C Crimes Act was seen as a good stop gap measure. However, orders for this form of detention were not seen as being available indefinitely, and the documents reveal a plea to the AFP in the UK to seek evidence from the UK authorities to support a PDO.

Into this series of discussions, the option of immigration detention thrusts its face on July 8 when non-secret and secret briefs from the AFP to Minister Andrews were revealed which would allow him to cancel the visa. They were updated a number of times.

The new picture then is one of immigration detention to detain Dr Haneef being an option along with PDOs; detention without charge; bringing a criminal charge; and control orders, at least from July 8 and probably from an earlier date. The prime advantage of the visa cancellation option seems to have been that neither the Department, nor Mr Andrews, who made the decision, placed a high bar on the standard of evidence required.

As it turned out, the non-secret evidence that Mr Andrews accepted indicated that the highly selective version of a chat room conversation between Dr Haneef and his brother that Mr Andrews released, that day, was the whole of that chat room conversation.

Mr Clarke’s Inquiry

Mr Clarke and his team are working very hard to discover the truth as to how what happened to Dr Haneef was able to happen. However, Mr Clarke’s job has not been made easy and his Inquiry is not the full judicial Inquiry that the present prime minister repeatedly promised.

It is not even the semi-open virtual Inquiry that Mr Clarke, himself, promised. On April 30, 2008, in his opening statement, he said:

“… I have received assurances from each of the relevant government agencies that they will fully co-operate with the Inquiry.”

This promised co-operation would allow Mr Clarke to provide an open Inquiry, subject to narrowly defined exceptions.

By July 9, 2008, things were not rosy and it appeared that Mr Clarke was not calling the shots: somebody or something was making Mr Clarke’s openness very difficult. He said:

“While the documents have, in the main, been delivered to the Inquiry, gaining access to the documents has involved a protracted period of negotiation. The delivery of the documents has, however, been on a confidential basis and the Inquiry has not been given authority to publish those which are classified.”

And so Mr Clarke has been forced to abandon an open Inquiry. The final word appears to be that Dr Haneef's lawyers and the general public will receive no information as to the evidence before the Inquiry until it is too late.

In our submissions, we drew upon a revealing fossil record (obtained mainly through FOI processes) and were able, with some guesswork, to cobble together to raise important issues that must be answered by agencies, officials and politicians. With very few resources, and little time allowed by the Inquiry’s guidelines, we put together 125 pages of analysis.

Submissions from agencies such as ASIO, the CDPP and the Queensland Police Service have confirmed many of our guesses and filled in some of the knowledge gaps. Though it has lodged a submission, the AFP maintains (at time of writing) that national security considerations prevent it from allowing one sentence of its submission be published by Mr Clarke.

However, in making final submissions on behalf of Dr Haneef, we will not have the benefit of knowing what questions were asked of witnesses nor what answers they gave. We will have no further documents apart from those we are continuing to seek and obtain by FOI processes.

As a result, we will be able to provide only limited assistance to Mr Clarke as to how or why Dr Haneef was subjected to the indignities he experienced over 26 days in July 2007.

Such a set of circumstances does not constitute Mr Rudd’s “full judicial Inquiry”.

Recent developments

A letter we received from the AFP’s lawyers on July 4, 2008 revealed, at the request of counsel assisting the Clarke Inquiry, five transcripts of interviews between Dr Haneef and the investigating police officers. Dr Haneef's lawyers had never been told of these transcripts. In fact, the AFP had written to them in September 2007, saying: “… the AFP has complied with its obligations … and to this end your firm has been given copies of all the audio records of interviews … as well as the associated transcripts”.

Obviously, they hadn’t complied with their obligations at all.

The long delayed transcripts reveal that, when Dr Haneef was first arrested and offered to have a lawyer present, he stated at least twice that he wanted a lawyer. He was not provided with a lawyer and the interview proceeded without one.

They also reveal that, although part 1C allows a detained person or his lawyers to make submissions to a magistrate who is hearing applications under part 1C, Dr Haneef was never given an opportunity to make submissions himself.

Further documents may yet come from the AFP despite legal obligations to have provided them, earlier. Recently, we have been advised by the AFP’s lawyers that there may be some thousands of documents held by the AFP which have not even been considered by the AFP when processing our original FOI application. These documents had also been overlooked when processing our request for internal review under the FOI Act. We are trying to ascertain whether these same documents were ignored when deciding which documents should be provided to Mr Clarke.

We have, of course, received submissions from the Queensland Police Service; ASIO and the Office of the CDPP. I will let you decide whether the submissions from the Attorney-General’s Department and the Department of Immigration and Citizenship are worth anything other than raw material for the next Hollow Men episode.

Interestingly, none of the Department of Prime Minister and Cabinet; the Department of Foreign Affairs and Trade; or the Australian Customs Service bothered to provide a submission.

Mr Keelty’s moment on the road to Damascus

At 4.35pm, on August 29, my instructing solicitors received a letter from the lawyers acting for the AFP. The media noted how the public announcement, nine minutes later, was attempted to be snuck through with no fanfare, as late as possible, on a day when many of Australia’s journalists were on strike.

I want to mention, very briefly, the niggardly, mealy-mouthed and ungracious language used in the documents. The letter and the press release conclude with the words: “At the present time, there is insufficient evidence to institute proceedings against Dr Haneef for any criminal offence.”

There is no apology for the 14 months of negative impacts on Dr Haneef's life and reputation. There is no use of the words: “Our investigation has cleared Dr Haneef.” It appears to be a last attempt by an agency, which has an inability to apologise or admit error, to leave one last, nasty slur on the character of Dr Haneef.

Mr Keelty and the AFP should be called to account for the manner and content of their announcement as well as the 14 months of investigation that preceded it.

Conclusion

Dr Haneef's case raises some of the great conundrums faced by a consideration of law and its application. The law was not obeyed by the authorities. Is this the fault of the law or the authorities? Do we rewrite the law or do we restructure the authorities?

I make some very tentative observations.

The test required to be satisfied, to arrest under s.3W of the Crimes Act, reasonable satisfaction that the person has committed the offence, is a good test. I do not think it was applied. Nor does the evidence suggest that the requirement that one must release, if the reasonable satisfaction evaporates, was ever adverted to.

Part 1C of the Crimes Act was never intended to result in detention for 12 days without charge. An express upper limit on the period of detention should be inserted into the legislation.

The hearings before Mr Gordon in which orders for increased investigation time and periods of down time were made failed to act as the safeguards they were intended to be. The legislation should make clear that they are not secret hearings; that the detainee is entitled to be told the information on which the application is based; and the hearing should take place in the presence of the detainee, whether he has legal representation or not.

The Migration Act is a vehicle of political expediency. It should be completely rewritten.

Australia should work to make sure that its public servants are professional and fearless. Minsters will receive better advice if that is achieved.

Finally, when we address the threat of international terrorism, Australia must ensure that the time and resources dedicated to that objective are managed and deployed by a leadership team that always has, as its number one priority, the security and safety of the Australian people. Our law enforcement officers must have leadership they can trust and respect.