A Further Erosion of the Rule of Law by Julian Burnside, Q.C.

The implications of the treatment of Dr Haneef are alarming. They are further indications of the things which this Government is prepared to do, especially in an election year. The Immigration Minister lends himself out as a branch of the police force, and the Attorney-General takes advantage of his impropriety.


On the morning of 16 July, Dr Mohamed Haneef was granted bail as he awaits trial for an alleged terrorist offence.

Dr Haneef spent 12 days in custody waiting to be questioned by Police. He was held under provisions which, the Justice Minister assured the Parliament, were only intended to see suspects held for 24 hours or so.

The allegation against Dr Haneef is this: that he gave his prepaid mobile phone SIM card to his cousin last year when he was leaving England. The SIM card would not have been of any use to him once he left England. The essence of the charge is that he was ‘reckless’ about whether the SIM card might be used nearly a year later in connection with a failed terrorist plot.

Presumably, the Magistrate granted bail because, apart from anything else, the charge looks very thin. However, as soon as Dr Haneef was granted bail, Immigration Minister Kevin Andrews cancelled his visa. The Migration Act says that a non-citizen who does not hold a valid visa must be detained until they get a visa or they are removed from Australia. Dr Haneef is unlikely to be given a new visa in the circumstances. And he will not be removed from Australia because he is facing a trial. The Australian Federal Police intend to issue a criminal justice certificate to ensure that Dr Haneef cannot be removed from Australia.

So, Minister Andrews has in substance revoked Dr Haneef’s bail. He has done so, he says, on the grounds of ‘bad character’. So much for the presumption of innocence which Mr Howard spoke of the other day. This represents a further erosion of the rule of law. The power to revoke a visa is conferred in order to expel a person from Australia. The power to detain a non-citizen who does not have a visa is ancillary to the power to expel. But Dr Haneef’s visa has been cancelled even though Minister Andrews has no intention of expelling Dr Haneef from the country: he is to be held here to face trial, pending which a magistrate thought he was entitled to bail.

Under the Migration Act a person who cannot be removed from Australia can be held in detention for life if necessary. However long it takes to prosecute Dr Haneef, he can be held in immigration detention because Minister Andrews has revoked his visa and does not plan to remove him from the country.

Minister Andrews’ conduct is disgraceful for several reasons. First, he has used the Migration Act powers to interfere with the criminal justice system: by cancelling a visa, he has trumped the grant of bail. Second, he has publicly branded Dr Haneef as a person of bad character: in the current climate, that will not help him get a fair trial. Third, Dr Haneef is to be sent to Villawood Immigration Detention Centre in suburban Sydney. Dr Haneef’s pro bono lawyers are based in Brisbane. Dr Haneef is thereby placed at an enormous disadvantage in preparing for his defence.

Now here is the question for Kevin Andrews to answer: If Dr Haneef is not committed for trial, or if he is tried and acquitted, will Andrews give Dr Haneef a new visa? If so, then it will be obvious that there is no longer a presumption of innocence as long as Kevin Andrews is involved: Dr Haneef will have spent months (more likely years) in immigration detention in order to prove that he is not a person of bad character.

If Andrews does not intend to restore Dr Haneef’s visa in the event that he is acquitted, then Haneef will be forced to leave Australia. We will then have reached the position that a person can be jailed for years and then expelled from the country because they have been wrongly thought to be of bad character.

The implications of this latest development are very alarming. It is another indication of the things which the Howard Government is prepared to do, especially in an election year. The Immigration Minister is willing to lend himself out as a branch of the police force. The Attorney-General is willing to take advantage of Kevin Andrews’ impropriety. A person charged with an offence that carries a potential of 15 years’ jail has now been placed in a position where preparing his defence will be virtually impossible.

Is this the democracy we are trying to save?

Julian Burnside, Q.C. Julian Burnside, Q.C.

Julian Burnside is a barrister, specialising in commercial litigation, but has acted pro bono in many human rights cases.

Julian is also an author, and was architect of From Nothing to Zero, a collection of letters by asylum seekers held in Australia’s detention camps. 

Find out more on www.julianburnside.com.au

About Father Dave

Preacher, Pugilist, Activist, Father of four
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