The authority of the federal government appears to be under growing public scrutiny as the so-called “War on Terror” transcends expiry and exposes ongoing threats to human rights. The latest indiscretion was revealed when a Federal Court judge overruled a decision by Immigration Minister Kevin Andrews to revoke the professional employment visa of terrorism suspect Mohamed Haneef and place him in immigration detention.
Dr Haneef was taken into custody on 2 July and was held for 12 days under special new anti-terrorism powers. He was charged with “recklessly” providing support for a terrorist organisation after lending his mobile SIM card to his second cousin Sabeel Ahmed, who, with brother Kafeel, was implicated in the attempted terrorism attacks in London and Glasgow earlier this year.
Despite the presumption against granting bail to terrorism suspects, the Brisbane Magistrate hearing Dr Haneef’s case was not convinced that the Gold Coast-based doctor posed a threat and bail was granted at $10,000. Attorney-General Philip Ruddock criticised the decision at the time, questioning the courts’ interpretation of the legislation and suggesting the government might need to consider making legislative amendments. His comments indicate a growing tension between the law and government, which was only compounded by Minister Andrews’ improper application of the Migration Act 1958 (Cth) when he revoked Dr Haneef’s visa.
Since ‘9/11’, forty or more anti-terrorism statutes have been passed in Australia . More recently, parliament has considered new search powers for Australian Federal Police (to match those of their state counterparts) and new censorship laws banning publications, films and computer games that “advocate” terrorism. While such measures may reflect the government’s commitment to national security, the United Nations (UN) Special Rapporteur’s Report - Australia : Study on Human Rights Compliance while countering terrorism - warns of their contempt for civil liberties. The UN report scrutinises legislation and regulations regarding: definitions of terrorist acts and organisations, detention and search durations, the use of control orders and preventative detention, disclosure of information to suspects, and compliance with international humanitarian law.
Perhaps the most frightening legacy of the War on Terror is the temptation to depart from the rule of law. It is also, ironically, a further source of antagonism feeding the political and religious conflicts that can lead to terrorism. That is why an independent judiciary that can ably check and balance executive power is so important.
In comments following the High Court’s recent endorsement of control orders issued against “Jihad Jack” Thomas, dissenting judge Michael Kirby reiterated the responsibility of the courts to defend the ‘separation of powers’ doctrine. He warned that “if the courts are seen as effectively no more than compliant agents of the other branches of government, they will have surrendered their most precious constitutional characteristic” (Thomas v Mowbray [2007] HCA 33, at para 368). The Federal Court’s decision in Haneef’s case should provide some reassurance, but with Minister Andrews planning an appeal against the decision, the integrity of the court process remains under threat.
It seems that in this current war, where the end is undefined, the scope of power to contaminate the trial process and undermine basic legal principles is ongoing. Protecting fundamental freedoms and rights without compromising the rule of law is the constant challenge. Hopefully, democratic principles and a robust and independent legal system will provide the necessary balance.
More information
From the LIV Bookshop What Price Security? Taking Stock of Australia’s Anti-Terror Laws, by A Lynch & G Williams, $130
