The pursuit of terrorists post September 11: be afraid, be very afraid …

Mohammed Haneef is now back in India, and only time will tell whether or not he will want, or be allowed, to return to Australia.

Countering the real risk of bombings by people who hold extreme views is an important task for governments throughout the world. The need for effective laws to pursue terrorists cannot be denied. The Mohammed Haneef case has shown that this must be balanced with individual rights and fundamental principles of justice to ensure that Australia remains a civilised, principled society.

The Federal government's recent treatment of Haneef has exposed just how brutal the exercise of executive power against an individual can be in this political climate - and, perhaps more importantly, that the broader community is not necessarily any safer because of these measures.

The link between "terrorism" and our migration laws is complex and one that is easily manipulated in tabloid politics. No one could have complained if Haneef was deported after a proper application of the "character test". However, that is not what happened.

Haneef was first subjected to the sharp edge of Australia's so-called anti-terror legislation: every tool available to the authorities was used short of physical torture. All that has been shown is that these powers in the hands of faceless investigators and bureaucrats should make us all shudder both in fear and in embarrassment.

Minister Andrews' decision to revoke Haneef's visa was unashamedly intended to usurp the criminal process by moving the power to detain him, before he is convicted, from the court system to the executive government. The fact that he relied upon faulty information emphasises the dangers when there is not independent judicial assessment of information relied upon by police. Add to that the overstatement of these assertions by the government's prosecutor and we have the recipe for tragedy.

Removing such important decisions about our freedoms and liberties to political frameworks means that the truth is apt to be clouded by dust and spin. This has the practical effect of greatly diminishing the power to review the government's actions and removing obligations of disclosure.

The propriety of this move has been intensely questioned, and the paucity of the evidence available to the AFP has been expertly revealed by the media. It is clear that now is the time for reflection; yet we have the cold response by Minister Ruddock that this is exactly how the laws were intended to operate.

When the independent court's assessment of the evidence did not reflect the government's wishes, the Attorney-General foreshadowed reviewing the laws to make them even more draconian. Several ministers have also made personal attacks upon Haneef's lawyers, a disgraceful and transparently cynical use of Orwellian "Newspeak" that Philip Ruddock perfected when he held his last portfolio. Even Commissioner Keelty has joined the blame game rather than using this debacle as an avenue to improve the AFP's capacity and efforts.

This lack of self-awareness and insight by these powerful figures, our front line against terrorism, should make us very concerned. If they cannot see the obvious shortcomings, how capable are they of protecting us from real terror?

A far more responsible approach is necessary. There is a need to make a sober assessment of this legislative framework on important principles of criminal justice. Also, a sophisticated, independent identification is needed of the actual risks and whether any improvements to security have been achieved by these measures.

The processes involved in the "ordinary" or non-terrorism related criminal justice system are understandably complex. There is instilled in this system a number of principles which are intended to strike a reasonable balance between the due prosecution of offenders and the protection of our individual rights. Views may reasonably differ on some of these principles but they have been in place for centuries and include the presumption of innocence and placing the burden of proof on the prosecution, as well as setting the standard at proof beyond reasonable doubt before a person can be found guilty, incarcerated or otherwise punished.

Also, other than for offences that impose mandatory life imprisonment, such as murder, it is assumed that as long as risks are appropriately addressed, an accused person is entitled to be free until such time as an independent judicial process determines guilt. These are important protections which set us apart from the arbitrary detention and political abuse of power that existed, for example, under Saddam Hussein and still exists in places such as Burma and Zimbabwe.

We rightly cite this balance as being an indication of Australia's maturity as a democracy and our sophistication in governance.

However, the 2004 laws under which Dr Haneef has been detained bear almost no relation to these principles, and indeed intentionally demolish many of them.

First, the Act permitted the government to detain the doctor in a police cell for two weeks without any charge. This is despite his having co-operatively answered hundreds of questions from the AFP on the very first day.

Second, after this interrogation the government was allowed to withhold from Dr Haneef and his lawyers' critical evidence relied upon by the government's lawyers in charging him and seeking his detention prior to any trial. The court can be shown this material and is required to act upon it without ever receiving any argument against that evidence by Dr Haneef.

Third, the presumption of innocence is significantly diminished by requiring Dr Haneef to demonstrate "exceptional circumstances" in order to be released on bail.

Fourth, after having managed to do that before an independent court he remained in custody because a government minister determined that Haneef had failed a "character test" within our migration laws. Dr Haneef has to now seek a Federal Court review of the Minister's decision before he has any prospect of being able to resume his work as a doctor.

It was not the system that finally rescued Dr Haneef, rather the effective investigation of the matter by a handful of journalists and editors in the media, especially from The Australian newspaper. Our collective liberties cannot be reliant on similar enthusiasm being shown whenever a person is accused of these crimes.

Other commentators and indeed Dr Haneef's lawyers have amply demonstrated specific limitations in how the government's case was proceeded with. However, let us assume that the government's conduct is "lawful" in the sense that this is what they intended the legislation to permit. What does it say about our respect for universal rights? And perhaps more importantly, how much safer are our children from the real acts of terror?

It is probable that if any real terrorists are caught by the AFP, the government's framework will be effective and they are unlikely to be released before trial. In that sense we are protected. But it will also catch many other people who are clearly not terrorists nor in any way supportive of terrorism. It will catch young men like Haneef, who obtained qualifications as a doctor and gained legitimate entry into Australia to work in our understaffed health system.

A year earlier he had been so "reckless" as to give his cousin his SIM card without knowing his cousin's future purposes. He would later be accused of a connection with an act of terrorism on the other side of the world. Haneef's cousin has been investigated by the British authorities, and reportedly cleared of any association with any terrorist organisation. Contrary to what was originally submitted by the DPP, the SIM card was not in fact found in the car used in the attempted bomb attack.

How these and other misstatements were made warrant an independent inquiry and made the criminal allegations against Haneef a complete farce.

But the intervention of the DPP, as welcome as it was, will now take the pressure off the government in the short term. Since he has been returned to India, the remaining combatants in this rather feeble war will attempt to re-create history, lay the finger of blame at others - Keelty went so far as blaming the media - and reject any need for review of the powers given to them and how they have used or misused them.

It is politically important to be seen to be tough on "terrorism". The Federal Opposition stood "shoulder to shoulder" with the government on this issue until its case had been completely obliterated by the media and the DPP. Because it's an election year, any criticism, however reasoned, might have been seen as a sign of weakness and reflect badly at the voting booth.

But what is at stake is much more than the makeup of the next Australian parliament. What is at stake is our collective sense of what is right and wrong in the treatment of individuals in this country, both citizens and non-citizens, in the professed pursuit of our collective safety and protection from political terrorism; in essence our collective “line in the sand”.

The critical question that must asked, is whether there have been systemic failings in the Haneef case or a sequence of mistakes by key players; or worse still an opaque mix of both. And, the certainties expressed by all sides of the present discussion, and the view that the appropriate "balance" has been reached, will prevent solutions being found. As will the expedient personal attacks which have been the only focus of some of the people responsible for this system.

Australians want to be safe from terrorism. Not just to feel safe, although that is also important, but to actually be safe. And given our riches we are entitled to the best protection our governments can devise. Most decent people will accept there will need to be some incursion into our individual rights. We will all cop a "feel" from airport security, limit the beauty products we take onboard and wait for twice as long before we get on a plane, because we accept that those measures are probably making us safer from weapons or a bomb being brought on.

The same test should be applied to the legislative framework under which the AFP, DPP prosecutors and the immigration officials have been given such extraordinary powers to conduct their work in this area.

We have seen the powerful tools they have been given, some of which they have utilised against Haneef, can clearly exact brutal impact upon the life of anyone accused of being involved in terrorism: detaining without charge for weeks on end, reversing the presumption of innocence when seeking bail, the power to revert to migration laws to usurp a court's decision on bail thereby using executive rather than judicial power to continue to detain him.

Some might say that even though Haneef is now cleared of any involvement in terrorism, that these intrusions and the decimation of his character, and the weeks in detention are justified; such is the danger from terrorism. Others may think that such an approach does not protect a far more fundamental Australian value, the idea that everyone gets "a fair go", and some would be concerned that they might face similar treatment.

There must also be a review of the checks and balances that are in the present legislative framework so that this intrusion into his life and demolition of his character was not in complete vain.

A system that is reliant on the integrity of individuals, some of whom have a vested and sometimes political interest in being seen to be "tough on terrorism", is apt to human failings. It is not as safe as a system that is informed by a subscription to fundamental principles, as secondary as those imperatives might have to be to the need to protect the community from terrorism. Unless our system is based in principle it will always be open to the concerns in the Muslim community that there was too much regard given to Haneef's ethnicity and religion. It is a real fear and one all of us should share.

The application of these laws in the fashion exercised against Haneef has not made many of us feel safer and there is no real likelihood that we are in fact any safer. Yet these laws abridge the rights of all of us by demonising an individual by mere allegation.

These laws do not protect Australians. They look unlikely to increase the possibilities of catching terrorists and their associates. Yet they diminish and shame us and lay bare our pretensions of sophistication and maturity as a nation that heralds the "fair go".

The brutal demonstration of executive power against this young doctor signals a cold warning about how dangerous unchecked political power can become. Big Brother is not just a boring reality TV show. Even Orwell would be grimacing. Be afraid, be very afraid ...