7-18-07, 9:44 am

Indian doctor Mohammed Haneef’s prolonged detention in Brisbane, in the absence of any charges against him under counter-terrorism laws amounted to indefinite detention 'by stealth.' The authorities, under mounting criticism from across the community, eventually charged Dr. Haneef with recklessly supporting terrorism. He was granted bail by a Brisbane magistrate who, going on the extremely flimsy 'evidence' put to her by the Australian Federal Police (AFP), did not see him as a terrorist threat to the Australian public. This was too much for a government, determined to have a 'terrorist' behind bars. The Minister stepped in, this time using the government’s draconian immigration laws, and stripped Dr. Haneef of his visa and work permit and within hours of had him locked up at Villawood Detention Centre.

Dr Haneef’s situation was characterised by Law Council President Tim Bugg as 'indefinite detention by any other name'.

With the Australian Federal Police asking for judicial extensions of his detention Dr. Haneef had been 'effectively … in a state of suspended animation', Mr Bugg pointed out.

When Dr. Haneef was released by the court, he had to provide surety of $10,000 and report to the Southport police station three times a week. He will clearly be unable to meet those requirements.

His legal team have been kept largely in the dark, details of his 'crime' presented in their absence to both the court and later the Minister. They are learning more from leaks to the media than through official channels.

According to the media, the secret information centres around his having lived with people, associated with certain people, and having given his cousin a mobile SIM card which was found in a car used in the Glasgow Airport bomb attack last month. So far his computer has revealed two emails from them congratulating him on the birth of a child — confirming his claims that he was leaving Australia for India to see his new-born daughter.

As his lawyer Peter Russo put it, he should not be treated in the same way as those who carry out terrorist acts. 'The trouble is, he’s been charged with the most serious charge a person can be charged with under the legislation', said Mr Russo.

Immigration Minister Kevin Andrews claims there is no connection between the terrorism charges being heard by the court and his incarceration in Villawood and possible deportation. Andrews said he applied the 'good character' test and Dr. Haneef failed it because he 'reasonably suspected' that Haneef had an association with people involved in terrorism.

Democratic rights wiped

In other words Haneef has been convicted and punished on the basis of mere suspicion by a member of executive government bypassing prosecutors, hearing of evidence and sentencing in a court.

He has a right now to appeal to the Federal Court.

These draconian laws take away the presumption of innocence.

Under the terror laws there is a presumption against bail and it can only be granted in exceptional circumstances. The magistrate, when granting bail, found eight exceptional circumstances, in effect throwing egg all over the faces of the Australian Federal Police (AFP).

The developments came as senior Indian police said they had found 'not a shred of evidence' against Dr Haneef.

Dr. Haneef was arrested at Brisbane Airport on July 2 as he was about to board a flight to India to see his wife and new-born daughter.

One of the government’s arguments at the time was that he did not have a return ticket, insinuating that he was running away. But he had intended to organize his return flight with his wife and baby.

His wife Firdous called on Indian Prime Minister Manmohan Singh to act on the case. 'I am appealing to the Prime Minister to help me out', she said. 'I had patience till now because I thought they would not charge him without reason.

'The charges are baseless and senseless. If it was an offense about a SIM card, they should have charged him on the first day itself.'

The doctor moved from England to Australia to work in the public hospital system. Those individuals arrested for the car bomb attacks in Britain had not been convicted of any crime at the time of writing.

New laws tested

Under the amendments to the ASIO Act, those detained may just be believed to have heard something that might be of use to ASIO. If detained for questioning under an ASIO warrant, you have no right to silence even if the answer is self-incriminating, violating a long-standing fundamental principle of law. The penalty for not answering a question is up to five years in jail.

The onus of proof is reversed. For example, if ASIO asked someone for the names of members of an organization who says they do not know, the person must prove that he or she does not know. Again, under long-standing legal principles, it is up to the interrogators to prove that the person knows.

There is no legal requirement for ASIO to provide detainees or those charged with offenses with details of the evidence being used, nor to their legal representatives. The whole process is shrouded in secrecy, and it is an offense to even tell anyone or report on what took place during questioning for two years after the event.

It is a terrorist offense to associate with members of a proscribed terrorist organization (unless close family or legal adviser) or 'to support financially or in any other way' an organization on the government’s Proscribed Organizations List.

Hence the alleged provision of a SIM card from a mobile telephone to someone who is suspected to be a terrorist is a crime punishable by a long prison sentence.

Intent not necessary

The Criminal Code also makes it a serious offense, punishable by imprisonment, to support or provide funds to an outlawed group where the person giving the support does not know they are supporting a terrorist organization if they are 'reckless' in not knowing it.

Again the onus of proof is reversed. How do you prove that you did not know someone is a member of a terrorist organization or planning to commit a terrorist act?

The detention and questioning processes bypass the normal avenues of justice. ASIO act as police in deciding on who is to be arrested, detained etc. The Australian Federal Police carry out the raids, a magistrate or judge acting in a personal capacity (not an open court) signs and renews warrants, with a member of executive government (the Attorney General) approving the process. Even court hearings where 'evidence' is heard, can be closed as occurred in Dr. Haneef’s case, not just to the public but to the defendant and his or her legal representatives.

Dr. Haneef’s is the first real 'test case' under these provisions of the counter-terror laws.

In a related development, Australian Defence Minister Brendan Nelson, now in India on a visit, said 'this particular issue [concerning Dr Haneef], which perhaps none of us really expected, will require us, perhaps, to develop some sort of a mutual arrangement.'

In what amounts to a rebuff to the Howard Government, India’s Central Bureau of Investigation demanded an official letter from the Australian Government asking that an AFP officer in India be allowed to make inquiries about Dr Haneef. Indian officials also used the front page of The Hindu Times to raise the fact that the doctor had not been charged with any offense.

The Indian embassy has also demanded that there be a consular visit to Dr. Haneef. The Hindu Times article also said the AFP was 'clearly told Indian police authorities, security and intelligence agencies would not welcome casual and informal inquiries against Dr. Haneef.'

In addition to destroying his reputation and his career, his detention may also see him evicted from his unit in Southport. As of last Thursday he had seven days to pay his rent arrears, as he had not been able to pay his rent since his arrest. The landlord is reported to be very unhappy with the damage done to his property by the AFP.

In addition, he has now been suspended from his workplace.

The Howard Government now has two election campaign actions under way: a terrorism scare campaign and a racist attack on Australia’s Indigenous people to steal their land, dressed up in the guise of helping their communities.

From The Guardian