Keeping Australia safe by an improper exercise of power?

Although the Federal Court is likely to rule on this issue in the near future, it is arguable that that it was an instance of colourable exercise of power. It seems that the Minister tried to do indirectly what could not be done directly, that is, keeping Haneef behind the bars at any cost and just for the sake of it.

In reaching a conclusion about the character test, one of the factors that the Minister had to consider under Section 501 was if “the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct”.

The meaning of the term “association” is critical here. Whether an innocent association with criminals or criminal groups will suffice, or should there be something more than that?

The counsel representing the Minister before Justice Jeffrey Spender took the position that an association of any kind with criminals is enough for a non-citizen to fail the Migration Act's character test. It is submitted that such literal interpretation might result, as Justice Spender pointed out, in absurd results, which should be avoided by resorting to the mischief rule or the golden rule of interpretation.

Similarly, the law required the Immigration Minister to satisfy himself that the cancellation of Haneef’s visa, which would entail deportation from Australia, is in the national interest. Of course, it plausible to think that as compared to the judiciary, the executive could be more suitable to assess what is or is not in the national interest of Australia. Nevertheless, this decision should be made bona fide and on the basis of some material rather than to serve a given political agenda.

It looks like the Minister probably did not satisfy himself in this manner, unless he had access to some evidence which was not put before the magistrate that granted bail to Haneef. If deportation of Haneef was in the national interest, the Minister should have known that the deportation might not be possible in view of the pending criminal trial. On the other hand, if his detention was in the Australian national interest, the Minister should not have indirectly overruled the magistrate’s decision of releasing Haneef on bail.

Rather than interfering with the independence of judiciary and its process by cancelling Haneef’s visa in this way, the government should have appealed against the magistrate’s decision if they were convinced about their position and had strong evidence against Haneef. It is a matter of some consolation though that Australia has an independent judiciary which provide recourse in redressing such colourable exercise of power by the executive branch.

Reckless use of terrorism laws

Australia, like other countries, has a right and power to defend itself against terrorist threats arising from both inside and outside. But the Australian Government also has a duty under the Constitution as well as international law to protect civil liberties not only of its citizens but also of non-citizens in some cases.

Did not the government justify an illegal invasion of Iraq, among others, on the grounds of securing the liberties and freedoms of the people of Iraq, that is, non-citizens? The duty on states to promote human rights nationally and internationally is not abrogated or diluted while exercising their right-power to protect themselves from terrorism. Therefore, striking a right balance between security concerns and human rights is of fundamental importance.

As people should not knowingly or recklessly support terrorists who do not respect the value of life, even the government should not knowingly or recklessly misuse terrorist laws to trample civil liberties or settle political scores.

Solitary confinements (to which Haneef has been subjected), harsh detention conditions, draconian interviewing techniques, fabricating evidence and bypassing the due process are no guarantees for safety against increasing terrorist threats.

Rather than containing terrorism, terrorist organisations and radical ideologies, Abu Ghraib and Guantanamo Bay might have done exactly the opposite. Reckless use of the anti-terrorism laws might prove counter-productive in the longer run, because every innocent incarceration provides a fertile ground for germinating the seeds of terrorism.