The decision to revoke Dr Haneef’s visa was in the Federal Court yesterday. Here’s an exchange reported by The Age:
Justice Spender said he, himself, had associated with persons involved in criminal activity. “I have defended them, charged with murder,” he said.
“Unfortunately, I wouldn’t pass the character test on your statement,” the judge told Roger Derrington, SC, representing the Immigration Minister.
“You’re not a non-citizen,” was the Government barrister’s reply.
Wow. Is it just me, or does it seem really dumb to tell a judge that he might well fail a character test if he wasn’t a citizen?
Arleeshar:
Yes and His Honour described the Government’s submission on the point as “astounding”.
So far as I know, that’s lawyer-talk for: “Rubbish. You’ll have to do better than that, chum.”
Ruddock would probably deport the Qld judge who granted Haneef bail as well, seeing as she maliciously overlooked the Government’s intent of locking up terror suspects and throwing away the key by applying the letter of the law.
Ruddoch will probably want to deport the Pilots who flew him in, the immigration officials and customs officers who checked his passport, the bus driver who took him from the airport etc.
The learned Judge’s statement is totally pointless and it surprise me that he couldn’t have made a more telling point. Lawyers are expected to associate with criminals in carrying out their duties; the law covers it and how else could they defend them?
Alleged criminals or terrorists associating with others of a like mind is not. The Government Barrister should have pointed that out in his retort. Whatever, the guy certainly wasn’t dumb enough to suggest that the Judge might fail a character – test, citizen or non-citizen; but for you to infer that he was might be.
I am curious as to what people think about this hypothetical: if the doctor were lodging his visa application today, after the attempted attacks in England by the relatives he has obviously been close to, should the government approve his visa? What would the media reaction be if it was disclosed that he had been approved to come here, despite the family connections, and sharing the same profession?
Should the government in that circumstance simply accept the applicant’s claim that he knew nothing of his relative’s plans, and only ever had “innocent” association with them?
If you think that the government in that hypothetical situation should not approve the visa application, acting on a precautionary principle, then how could you really complain about the government revoking his visa now?
Only if the UK charged him, otherwise it just shows how much the Aus government is overreacting.
Because the power to cancel a visa is intended to be used as a means of deportation. In this case, the government doesn’t want to deport him, but to keep him here to stand trial.
Although funnily enough there is a visa for this very situation, the criminal justice visa. It will be interesting to see if his legal advisors make an application, but of course the Minister has the discretion etc etc.
Steve, if someone was facing outstanding charges in another country, terrorism or fraud or speeding, their Australian visa application would certainly not be approved, rightly. Immigration Ministers in the past have rightly used their power to disapprove visas to people because of their associations: I can think of Gerry Adams (PIRA), David Irving (neo-nazi groups) and Snoop Doggy Dogg (crips) as good examples.
Your analogy, though—that immigration detention pending deportation is equivalent to stamping ‘no’ on a visa application—is wrong, wrong, wrong. Deportation here is being used as a punishment, which is bizarre in itself.
Because it’s a transparent attempt to circumvent due judicial process and the rule of law – something that I, for one, am quite fond of.
Governments shouldn’t be allowed to lock people up by fiat, even if they think they’ve found a way around the system.
We pretty much established that principle when they offed Charlie the first in England a little while back, and I’m really not sure how the ‘freedom loving’ right wingers in the government have lost sight of that.
There wouldn’t be any good reason to refuse Haneef a visa, so the answer is yes. Whatever qualified him for the visa in the first place – his professional qualifications, for example – remains unchanged under this hypothetical scenario. Would he have got the visa? Different hypothetical question.
About the same guilt by association hysteria that we’ve already had. Except this time it would be Kevin Andrews alone getting on his high horse about not letting Haneef into the country. Assuming, of course that he actually heard about it.
Let’s rephrase that – should the Minister, in those circumstances, assume that the consular staff who issued the visa were incompetent and didn’t take those factors into account?
Nicely loaded question. But I think I’ve pretty much answered it. Now let’s get back to the real situation. Hypotheticals are for people who don’t want to deal with facts.
Crankynick, Charles I had it coming, especially since he seemed to believe himself above the law. Anyway, the Parliamentarians made it quite clear then that regicide was a special case that required circumvention of the legal system, and justified it on the basis that it would prevent continued civil war.
Think of it as an reverse version of Nixon’s pardon.
Strictly speaking, FDG, the problem is not deportation. I am sure that Dr Haneef would be very glad if he was being held for the purpose of immediate deportation back to India where he could rejoin his family. The problem is the use of the detention provisions of the Immigration Act, intended to facilitate deportation, to circumvent the decision of the Magistrate to allow bail, where deportation is not being contemplated and where he could be held in what are, effectively, prison-like conditions for several months despite the Magistrate’s ruling.
Exactly, GregM. Well said.
It also exposes the lawyers in cabinet as acting with no regard to the rule of law which is basic to democratic principles.
The concept that KG is groping for is privilege.
It would appear that Government Counsel was either unaware of the concept, or he was unwilling to address it.
I would venture to suggest that it is the latter.
The principle of privilege is applied very narrowly. (Although in some Australian jurisdictions clergy are not forced to divulge the contents of another’s confession.)
I wonder if imams and muftis are accorded the same privilege.
Discussion of the privilege revolves around information that may or may not be divulged within a confessional. As confessionals are a peculiarly Catholic edifice, perhaps this privilege is an example of favourable treatment of the adherents of one religion over all others.
Privilege has the potential to be quite troublesome for the government.
It seems that yet another judge has revealed himself as being totally & completely devoid of wisdom. A dickhead.
There are plenty of judges & Magistrates whose character doesn’t measure up.
Charles I had it coming, especially since he seemed to believe himself above the lawThat was my point.
That trial pretty much established the principle that the executive (Charles 1) isn’t above the law.
Nice old shitfight between the executive and the judicial arm here. At least the Govt hasn’t tried to remove him from the Qld prison system after he failed to post bail. I’ve had a bit to do with Ryan and Bosscher Lawyers (Haneef’s law firm). They’re a good outfit, so it will be interesting to see what falls out of events.
How can any one get snotty about a Judge that suggests his character maybe less than a SAO biscuit!?
Trouble is the others in the courtroom might have been guilty by association.
Spender J’s a non-nonsense, old fashioned labour and criminal lawyer. The barrister is a blue-blood, son of a conservative state judge.
Spender was being facetious: the test is not just of relevant associations with criminals, but that the deportation be in the ‘national interest’. But who knows, maybe one day being a defence barrister will be grounds for ostracism: just as Stephen Keim SC.
(Nb Spender won’t necessarily be hearing the judicial review action on Haneef’s visa. Quite unrelatedly he WILL be hearing the QUT academics’ case: they drew well there, as his comments about seeing the case as raising important questions about the nature of ‘a university’ – ie academic freedom – reveal).
A point that is moot when the Executive controls the legislature.
I was amused by the Government Gazette’s justification yesterday when it stated, in defence of Andrew’s decision that under the Migration Act the Minster has sweeping powers and that they are subject to judicial appeal.
Right Oh! It’s all right then for the Executive to act on powers that it gave itself, with no right of administrative appeal and limited (at best – I’m curious to know what the recent High Court decision on FOI has application) rights of Judicial appeal. That is the sort of Liberal Democracy we want! Don’t we?
Why so harsh to the judge, oh Kev and SATP? He’s pointed out that statements such as “association of any kind with criminals” make crap and draconian laws. What’s wrong with that?
No it isn’t.
The High Court has the power to declare any law unconstitutional on any basis whatsoever.
The operability of the Australian Constitution relies upon the willingness and ability of the justices to use these powers wisely and with restraint.
This power is balanced by Section 72, which says in part:
In other words, High Court judges cannot be removed unless the two houses agree AND the G-G thiks it to be advisable. This is one aspect of the reserve powers of the G-G.
Katz,
Considering my total legal knowledge comes from defending a speeding ticket in court (and JP quals) I still think the subject of the matter is ‘consorting’ rather than ‘privilege’ even if that was what the judge was referring to. This is my point – The lawyer may associate with his clients under privilege but criminals (or terrorists) consort and the judge was deliberately confusing the issue.
Isn’t that so?
Down and out of Sai Gon…same answer – deliberately confusing the issues and on the face of it, politicizing the event
Well, actually they don’t have that power. They have the power to declare any law unconstitutional where it is unconstitutional. Full Stop. They are not appointed to act on whim but to uphold the constitution and the laws validly made under it. We call this concept “the rule of Law”.
I don’t think so. “Governor General in Council” is code for the GG acting on the advice of Cabinet which, by convention, he is bound to do. Still, Michael Jeffreys or his successor (hopefully never again a member of clergy) could surprise us as Sir John Kerr did with his little bit of injudicious meddling.
Nor is the executive appointed to act on whim.
Did I say they were? But to save me the bother, explain to us, as you understand them, the constraints that exist on the exercise of executive power under our constitutional system.
That was the judge’s point. You’re right that the cancellation depends on the national interest, but that is separate to the character test.
The way the legislation works now is that anyone who “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” automatically fails the character test.
Presumably lawyers would be allowed to stay because of the national interest component — but they’d be allowed to stay despite their bad character. The judge was (rightly) pointing out that the test is flawed if someone automatically fails even where their association with a suspected criminal is entirely innocent (or, in the case of a defence lawyer, honourable).
Bear in mind that this discussion was in the abstract, about how the legislation should be interpreted. It wasn’t about Haneef at this point.
start here
High Court Judges decide what is constitutional. Full stop.
The intentions of those who appoint judges are logically distinct from the actual behaviour of those judges. Judges may or may not apply the rule of law.
Full stop.
You have admitted yourself that the historical record contradicts your assertion.
If the G-G refuses to sign off on an Executive Council decision, then it is not an Executive Council decision.
If the PM disagreed with the G-G on the matter of refusing to sack a High Court Judge, of course, there would be a race for the telephone by the PM to have the monarch rescind the commission of the G-G before the G-G sacked the ministry.
The possibility that this undignified proceeding could occur points to the central weakness of the Australian constitution
Katz,
True the High Court can declare a law to be unconstitutional. Unfortunately, our constitution is a flawed document. It fails to explicitly state many of the ‘rights’ that are mistakenly accepted as part of the fabric that sustains a Liberal Democracy and without that explicit statement the High Court is constrained from applying those rights.
There are reasons for that, reasons that may have been pertinent at the time the constitution was written, but I would argue are now flawed.
The argument that Government Gazette has been making it that the Judiciary is unrepresentative, which is bad, whilst the executive is representative, which is good.
I would argue that one of the flaws with the direct representative democracy model the Government Gazette prefers is that it can lead to the ‘Tyranny of the Majority’.
The current wave of legislation in which increased discretionary power is placed in the hands of the Executive constitutes a move to direct representative democracy.
This may be something you approve of. I do not. I prefer a Liberal Democratic model where power is decentralised between the arms of government and between the states and federal spheres.
This government is prone to the centralisation of power in the Executive and I believe that this is bad for the long term sustainability of Liberal Democracy in Australia.
Whereas you Kevin, from your apolitical “the Government can do no wrong” position, prefer to wilfully ignore the issues and the inconvenient facts of the case in the interests of preserving your “objectivity”. But you’re not above trying to introduce a little confusion into the discussion yourself, with hair-splitting distinctions between “consorting” – which is what I might find myself doing if I happened to strike up a conversation with the wrong bar-fly at my local – and “privilege”.
In fact that merely evinces your own confusion on the subject and general ignorance of the law, consonant with your JP qualifications. Fortunately, in Victoria at least, JPs are no longer able to hear bail applications – they’ve been replaced by Bail Justices, qualified clerks of court, who are at least trained in the administration of the law. Who then undertake further training before they get near hearing a bail application.
This event was politicised by the Howard Government for its own purposes. That’s one of those inconvenient facts you’ve chosen to ignore. Don’t want to hear about it? Stop reading this blog.
Further to steve, Styx and Katz:
The Australian Constitution is an unsatisfactory hybrid of codification (as in the American/liberal tradition) and convention (as in the British/conservative tradition). It codifies not much more than the minimum required to establish the Federal bargain between the Commonwealth and the States (and imperfectly at that) and leaves much that is very important to unwritten conventions which (as we discovered in 1975) are neither unanimously understood the same way nor rigorously adhered to by all players when there is an advantage to be gained. And as Styx noted Australia lacks either a Constitutional or a statutory charter of rights and freedoms, which is a matter more than marginally relevant to the current debate.
This whole situation just highlights again what a huge problem John Howard and his government now have; one entirely of their own creation.
Let’s assume for a moment that the AFP does have “intelligence” that implicates Dr Haneef as being a person to be wary of, but it is not in a form that can be presented as evidence in court. Hence, they suggest to the government that it is best not to let him out because they have grave fears about what he is likely to do. Accordingly, the government responds by revoking his visa.
What’s the immediate reaction? It’s a political tactic, another trick designed to gain political advantage.
Similarly, John Howard’s recent announcement in Aboriginal Affairs, the national emergency, was also seen in the same light. It’s a political trick.
Now it doesn’t matter what the government announces as policy in the national interest, it will always be seen through the prism of another conjure, another tactic, another ploy, yet another trick.
Those who lament this cynical response from the media and the electorate to these recent initiatives, need to ask why?
The answer lies squarely on the shoulders of John Howard and his behaviour over many years. For him and the government, these chickens are well and truly coming home to roost.
Non-citizens are clearly fine for use a political footballs but what about dual/multiple citizenships?
The far Right & soggy Left were both jumping up’n'down on that issue about 10 years ago. However it turned out that so many Parliamentarians & senior civil servants(state & federal)and hoi polloi voters were in that category that it was quickly dropped.
And there is nothing Howard and Co can do about it.
As ye sow, so ye shall reap (eventually).
Yes amphibious, there is no requirement in Australia for elected representatives from overseas to even demonstrate that they have unpacked their bags.
Most of the politicians with dual citizenship would have done Australia a favour had they never come here in the first place.
Yes and we should deport everyone who didn’t declare themselves as Australian in the census. That should give you more elbow room at the bar steve at the pub. Though you might have difficulty organising a shout.
What are you, Styx, a softy? We should go the whole hog here as per Graham Bell’s prescription on Kim’s FGM thread:
“the entire family be stripped of their citizenship, have all of their assets confiscated, be given 10 strokes of the rattan [Singapore-style], have their faces branded “Friend Of Satan; Hater Of Godâ€? in the relevant language …. then kick the lot of them out of Australia….”
That would show them and would make great reality television. None of that sooky Big Brother stuff.
Styx, is that deportation meant to include bona fide overseas visitors, just PR’s, or just those Australians who are too stupid to know which nationality they are? My clientele is made up of lots of foreign citizens, however the Australians among them are in no doubt which nationality they are, and don’t hesistate to trumpet it, rather too much at times.
The staff could be a different matter. More than half of the Australian staff I hire, on their employment declaration, forgo the tax-free threshold by stating they are not “An Australian resident for taxation purposes”.
This despite them being an umpteenth generation Australian who was born here.
What Paul Norton said.
However:
The problem is that such a charter is itself interpreted by the Supreme Court in the US. The recent retreat on Brown vs. The Board of Education shows how these principles themselves can be reinterpreted and perhaps misinterpreted.
And the US Supreme Court in essence mounted a coup against the US Constitution in 2000 when it voted 5 to 4 to elect Bush as president.
As Rehnquist said, “We are a republic, not a democracy.”
And, more tellingly, the majority gave the election to Bush and then stipulated that their decision must never be used as a precedent ever again.
However, to make such a stipulation is simply to offer up a prayer, because like Australian High Court judges, US Supreme Court judges can come to any decision they like.
Oh what a brilliant idea. GregM, if that was done to about 4 families in this town, the police station could halve its complement of officers.
Which is why we have appeals courts.
Where do you appeal a decision of the High Court of Australia?
Be sensible.
The Privy Council should be the correct answer.
It’s a dilemma, you either have a Charter of Rights that can be ‘misinterpreted’ (depending on your political persuasion) or you have a system of conventions, that have no legal constitutional standing, and are themselves open to misinterpretation (depending on your political persuasion).
With the concentration of Executive power with the Federal Executive since Federation, I’d be more comfortable with a Charter I’m afraid.
No it wouldn’t. It would be an abrogation of our sovereignty.
I could possibly be persuaded by the right of appeal to a ‘properly’ constituted World Court but the current model is flawed.
Where do you appeal a decision of the High Court of Australia?
To the parliament, if it’s a matter that could be addressed by legislative amendment. Otherwise, to the people by referendum.
A fair comment, Katz and that same old “who guards the guardians?” question raised by Aristotle about Plato’s Republic
Lincoln alludes to the issue in his first inaugural address:
http://www.bartleby.com/124/pres31.html
SATP re the Privy Council for final appeals. NOOOOOOOOOOOOOOO! We have a very good High Court and its former Chief Justice, the great Owen Dixon, was perfectly right in his opinion that the Judicial Committee of the Privy Council were a bunch of duds.
There are two unrelated issues here:
1. It is conceivable that the High Court could declare such legislation to be unconstitutional.
2. It is possible that the power of the High Court could be curtailed by means of constitutional amendment. For example, it would be possible to introduce by means of referendum appeals to the Privy Council, or indeed to any other body. Perhaps one day our constitution may be amended to allow appeal to the High Sharia Court of Mecca.
And/or individual justices could be subjected to more certain methods of disciplining than those stipulated in Section 72 of the Constitution.
No. The constitution (and High Court interpretation) expressly prevents holders of dual citizenhip being in the Federal Parliament. The Liberal candidate for the Wills By-election when Hawke resigned was disqualified for holding Swiss as well as Australian citiznship. There had to be a re-election.
Not only offensive, Steve at the Pub, but wrong.
Errr, may I just mention that we are neither a Republic, nor a constitutional Monarchy? And sure as hell NOT a democracy, unles one adheres to Ian Smith’s lip curler, just prior to the Rev Canaan Banana’s very short tenure, “We already have responsible majority rule in Rhodesia.”
Parsing is a wonderful tool.
At least with a Bunyip Aristocracy we’d know who to assassinate.
Aristotle on 19 July 2007 at 2:11 pm:
Yep, absolutely right. They thought they could get away from it forever. Even if the beast really is on the outskirts of the village, the villagers are no longer listening to the cries of “Wolf! Wolf!”
When my daughter was three, I told her that story, and she got the message. How strange that it’s beyond Howard et al.
(Er, “with it”, not “from it”.)
Well maybe not a ‘Democracy’ in the Greek Polis sense of the word. But I would argue that Australia’s system does meet the criteria for what is defined as a Liberal Representative Democracy.
AndrewM, you’d think Steve at the Pub would recollect the woman he most likely put the 1 against on the Senate paper in 1998, Heather Mills (Pauline Hanson’s One Nation Party) being ruled ineligible by the High Court to sit as Senator for Queensland on account of her British citizenship.
Still, it is a long while ago, and all that bile probably addles the memory.
Myself, I reckon the sole qualification for sitting as a member of parliament should be people voting for you. You might recall the IRA prisoner Bobby Sands being elected to Westminster some time ago, before he went on a politically-inspired fatal diet. If people want to elect felons, then that’s fine – it’s their democratic choice. Similarly, I reckon the qualification for voting should be residency – if you pay taxes and have to obey the laws, you are entitled to vote in my books. It’s a right, not a privilege.
Call off the attack dogs Gummo – I didn’t think I was splitting hairs – just explaining my opinion better than I had before and in fact looking for confirmation as to my being right or not.
I think your calling me on objectivity a bit rich but I will keep reading – I find it often illuminating and sometimes entertaining.
Does anyone remember Joh Bjelke-Petersen being asked in court to describe his understanding of the doctrine of separation of powers? I wonder what Howard, Andrews and Ruddock would say?
This is where I feel Styx (who thinks Oz meets the requirements for a Liberal Representative Democracy) may have missed something. The tradition of separation of powers, central to the operation of a liberal democracy (representative or participatory) is being abused by Howard et al more than Joh ever did.
The sad thing is that most Australians then understood the danger Joh presented. Now, most of Australia has caught the same disease we used to laugh at Queenslanders about. Worse, the federal opposition is making less noise now about such fundamental issues than the Queensland Labor Party did in the 70’s and 80’s.
It’s no longer surprising the Howard regime is being so cavalier with democratic fundamentals – what is shocking is the silence from Rudd and co.
It’s comforting to have this issue relegated to about page 5 in the daily blab and about item 6 on the ABC news. Cynicism rewarded.
The (“old news, in case you’re interested”) item was neatly and intentionally backgrounded with footage of burning cars and failed terrorist aftermath. Not prejudicial, of course. Nor are the blurry mugshot style photos of the gent with”terrorist suspect” as the cued voiceover.
The main item now is the Costello/Howard Who Weekly gossip bitchy game – which is yet another example of how this mob dominate the headlines each week, yet completely fail to resolve the conflicts they initiate. Would you invite either of these crooks to dinner? Bla de bla economy, we have a record profit, sorry, um surplus, jig unemployment criteria for good numbers. Gasbags.
Haneef will probably disappear from our shores in the next few weeks and the great unwashed will be the none the wiser. Just more politically expedient human fodder. And another brown compexioned person hounded out to give the crooks a small power advantage.
Another despicable load of crap!!!
This can happen if and only if:
1. The Cwth withdraws its charges against Dr Haneef. Then he is free to walk. When he does walk he can then be deported speedily.
2. Dr Haneef accepts his bail conditions. He is released into the custody of the Minister for Immigration who then has him deported after charges against him are dropped.
3. Dr Haneef is very speedily charged, the Cwth runs dead, Dr Haneef is acquitted. He is then deported.
On the other hand, if the trial proceeds and the Cwth does not run dead, then Dr Haneef will be in gaol, under the jurisdiction of the court, for a long time.
Dave Bath “..the doctrine of separation of powers…what Howard, Andrews and Ruddock would say?” Andrews is a simulacram but the Rodent & the Cadaver probably understand the concept, they just don’t care.
Once again we are faced with a government that doesn’t respect (or understand?) the separation of powers between legislature, executive and judiciary, which is something the Australian Constitution is not silent on.
So the legislature (Howard government) made some recent laws to deal with terrorism – increased detention powers and new offences.
The executive (Federal Police) have acted on a concern/possible infringement – and detained a suspect (Haneef) but chosen to leak information about his alleged crimes – then charged him after a considerable delay for a new crime that they knew about on day 1 (the SIM card gift).
Then the judiciary considered the legal merits and issues bail – stating that the police actually have a very weak case.
The legislature (Immigration Minister) then uses discretionary powers to override the judiciary to detain the alleged terrorist supporter using the unrelated immigration act – because they “know better”. Then they (Attorney General & Prime Minister) attack the legal representives who reveal (for the first time) detailed information about the case.
This looks to me like the actions of a fascist state which shows complete disregard for due process and the rule of law – because they think they are right and justified in what they do. Similar to cops who frame villains because they think they know who commited a crime but cannot actually prove it.
I can’t believe these guys keep trying this on – but I guess since they incarcerate people (and children) for extended periods in breach of international human rights simply to deter others from coming then they are capable of almost anything.
Thank you katz. I’m not qualified to submit legal statutes or opinions, but really appreciate relevant information.
Nah, sorry if I didn’t explain myself well enough. I had in an earlier post on this thread expressed my concerns about the centralisation of power in the Federal Executive.
My comment in the later post was about the formal structure not the Frankenstein monster into which it has morphed.
The thought of Andrews as a character from a Philip K Dick novel explains so much. Yet disturbs me greatly.
Has Carmen Lawrence had a fall or something? Someone please go around and knock on her door. The country needs her now!
Where does one begin?
The Parliament made those laws. The Labor Party (the Opposition) supported the legislation.
The Federal Police are not the executive. Ministers of the Crown are that. The police are agents of the executive.
Actually, they held news conferences on the subject. That’s not leaking. That’s being accountable to the public.
Acting in accordance with the powers Parliament had given to them, and so quite lawfully.
Quite correct on that.
The Minister (the Executive, not the Legislature) then used (in my view, wholly improperly) the powers he has under the Immigration Act to detain the alleged terrorist supporter.
.
Whereas the Government is criticised above for revealing information about the case.
No, this is the act of any executive over any time which always will think that they are right and justified in what they are doing. It is not particular to fascist states. It is why we developed the separation of powers and the concept of judicial review to restrain the exercise of executive power.
They detained those people for extended periods in accordance with laws passed by the sovereign authority in Australia, its Parliament, with most of those laws being passed when a Labor government was in power and the rest with the support of the Labor opposition. This is what we call representative democracy. “International human rights” is the aspirational product of a lot of feel-good luvvies getting together to say what they would like the world would be, provided always that their expense accounts at the luxury resorts where they invariably congregate are met by some poor buggers about whom they care nothing. The United Nations and the agencies that support it/ suck from its tit have made a mockery of international human rights, and have so debased the currency iof its discussion that it is worthless.
Why is my last comment awaiting moderation?
I think Greg Sheridan has it exactly right: http://www.theaustralian.news.com.au/story/0,25197,22095223-5013460,00.html
So there youy have it. On the basis of shadowy secret evidence that Greggie hasn’t seen, he can confidently assert that on the basis of this “evidence” Kevvie has made exactly the right decision.
The logic’s imunpeachable.
Just heard on AM that it appears the SIM card wasn’t in fact found in the car involved in the attempted bombing, but 350 kilometres away, in the possession of someone who has only been charged with withholding evidence.
So Dr Haneef might be even more distant from any act of terrorism.
If this is so, did the prosecuting authorities know this? Were they reckless in asserting that Dr Haneef’s connection was closer?
So many questions.
So few answers
CK’s quote from Greg Sheridan forms some sort of watermark in the toxic relationship between the Government Gazette and the Howard Clique.
I wonder if Greg Sheridan will be leaker-of-choice in the forthcoming character assassination of Peter Costello by Howard’s increasingly desperate associates.
What do we make of the assertions in the GG today that the “dossier” Kevin Andrews examined and based his decision on was “flawed” and didn’t contain all the information given by Dr Haneef in his record of interview: http://www.theaustralian.news.com.au/story/0,25197,22102699-601,00.html
Haneef’s father in law bought him the notorious one way ticket to India.
Brisbane Times on the verballing. Peoples lives and reputations are at stake here, how hard is it to get it right?
Agree with most of GregM response to Peterc. There are a couple of points where I do differ.
Technically correct but in practice the Executive controls the Legislature, especially whilst the governing party controls both houses of Parliament.
I know we have been arguing about the sustained attack on the Judiciary but in Australia the Legislature has for all intents and purposes been emsaculated.
The situation in Australia differs from Westminster where the Speaker of the House remains independent of the House, party discipline is less so there is more flexibility for: the legislature to vote against bills introduced by the Executive, and introduce private member bills into the House.
Someone was leaking information to the Daily Terror outside of the press conferences and interviews that were held to explain the Executive’s and its agents actions. This was not appropriate, And have issues with the way selective portions of the case were released whilst with a nod and wink we are told there are others matters that go to the heart of the case but we can’t tell you for reasons of National Security.
GregM
Your comment got caught in the moderation filter because you used the “L-word” (rhymes with duvvies).
Much to Labor’s shame on the mandatory denetion for asyluym seekers, Says I.
While we watch the case against Haneef come unstitched – it’s really looking rather shonky, with these latest revelations about the SIM card and the plane ticket – let’s look at what the parliament done and why they got it wrong.
In both cases – the mandatory detention law and the anti-terrorism laws – we’re loking at legislation that was passed in a panic and badly framed. Parliament should never have handed the Executive the power to harass individuals – even non-citizens – in this way. Even for emergency purposes.
So, how did this happen? The simplest explanation is that when each piece of legislation was debated in parliament it was considered in isolation. When the s501 powers in the Migration Act were bestowed on the Minister, it was no doubt on the assumption that they would only be used in very exceptional circumstances. And the anti-terrorism legislation was sold on the basis that it was purpose specific.
Well, now we know what happens when a government that is prepared to incite fear in the electorate has been given arbitrary executive powers by the legislature – they use it. Viciously. Much as I want The ALP to win the next election – another term of Howard is a dismal prospect – they really need to take a long hard look at their performance in opposition and their failure to keep the Executive in check.
It’s not just the ALP who need to take that look at themselves – those who sit in the classical liberal pews of John Howard’s “broad church” have pretty well dudded out on this one too.
Agreed, Gummo. Legislative assemblies are meant to balance the executive officers of the State, not just serve them.
The shorter case against Dr. Haneef (as it currently seems to stand based on what is on the public record).
In July 2006 in the UK, he allegedly gave his second cousin a phone card which was going to expire in August 2006, and in this way allegedly recklessly (i.e. not intentionally) assisted said second cousin, in July 2007 in the UK, to allegedly fail to notify police about an email which might have been open to the interpretation that it flagged an intention to commit a suicide bombing, but which could just as plausibly be open to innocent interpretation. And by allegedly recklessly assisting (in the UK) his second cousin to allegedly not do something (in the UK), Dr. Haneef has allegedly committed a breach of Australia’s anti-terror legislation.
Don’t forget all the damning admissions in the transcript of interview Paul: he admitted to being arrested on suspicion of providing support to terrorists, socialising with said second cousin, occasionally going to mosque both in the UK and here in Australia and saying his prayers regularly.
Katz, GregM — thanks!
I haven’t seen a positivism v. natural law stoush in ages! Very entertaining!
If that’s where saying prayers regularly gets someone then I don’t think I’ll be taking it up as a hobby. I just hope someone is praying for the return of the Howard Government.
When you put it like that Paul, its all the more ridiculous.
Thanks for the clarifications about Ministers being the Executive with Federal Police being their agents. I am not a constitional expert and don’t know much about the law either. I have been motivated to look into this further due to the apparent fuzziness between Legislature and Executive. I think it is a failing of the Constitution and our democratic system that they have merged into one and the same.
The general trend has been to grant more discretionary powers to the Executive without sufficient matching accountantablity (Immigration, Health, National security etc). They say they are “accountable at election time” but this is a ruse, and is offset by massive taxpayer funded Government PR that is being ramped up now.
Abbott was the only one who missed out on the “increased powers” during the RU486 debate.
Off topic – Ruddock claimed he couldn’t take action on Hicks because he thought “Guantanomo Bay was a foreign jurisdiction” – I wrote him and Howard a letter saying they should both resign due to incompetence as Guantanomo Bay is used by the US precisely because it is not a foreign jurisdiction – it is a legal limbo land outside of US law.
I think Paul sums up the Haneef case well.
Yes, mandatory detention and the concentration camps were started by Labor (Gerry Hand of the Socialist Left as I recall), and yes it is equally their disgrace too.
If Labor wins, I would expect them to revel in increased ministerial discretions and lack of accountability too – our democracy is being shifted by both major parties at both Federal and State levels towards something that is increasingly resembles a totalitarian state that detains people and children at their whim.
So look out if you ever went to a BBQ or dinner with an Iraqui doctor colleague who unintentionally assisted a terrorist by giving them a SIM card – you could dissappear from a couple of weeks of interrogation too, and your name and allegations about what you have been done would be all over the papers from the lips of the PM, Ministers and the Chief Commissioner of the Federal Police. You would have no right of reply.
But its OK if you love Big Brother.
Now I know why I thought the simcard in the 4WD story was a bit strange. I thought it remarkable that it would have survived the fire (flames leaping above the awning in the pic I saw.) It wasn’t there at all, but at home in Liverpool all the time!
http://abc.net.au/news/stories/2007/07/20/1983448.htm
Has anvone checked whether in fact it was still useable (before the Glascow incident)? How many old mobile phones do vou have around your house?
Listened to the World Today, which followed up (and confirmed) the GG story. They also interviewed a leading barrister who thinks the the Prosecutor and the AFP stuffed up big time in the presentation of the case going with incorrect info. In his opinion a good defence counsel would easily win a dismissal.
He thought the AFP reps should have corrected the counsel in court when they went with clearly incorrect facts about the sim card. The police were deceptive in implying that Haneef shared premises with suspects. Each had lived at a particular address, but at different periods. The police were either being deceptive, selective or misleading in implying that Haneef didn’t give them a satisfactory reason for suddenly leaving. His wife having a baby was good enough for his employer, but maybe he’s not on a Workchoice contract.
Any legal professionals able to add to it?
Not just any legal professional, Don, but Peter Faris QC, former head of the National Crime Authority, who has been a bit of a fan of the Government’s terrorism laws. It was a particularly spectacular serve he gave the prosecution and police in this case.
He pointed out, quite rightly, that if the prosecutor had made a mistake in his enunciation of the alleged facts of the case during the bail application, there would have been plenty of Federal police in the courtroom who could have corrected the record. And after the event, they could have raised it.
Either they did, and it was ignored, or they were happy to let the falsity stand.
Although incompetence is what one should always first assume in a case like this, one cannot help but wonder if here we’re looking at something far more sinister.
And I see that Andrews has refused to review the visa revocation, his spokeswoman saying, “The minister is not reviewing his decision to cancel the visa of Dr Haneef. Nothing that has been reported in the media alters his decision that was made based on information provided to him by the Australian Federal Police and is a broader range of information than was provided to the magistrate.”
Very conveniently, he doesn’t have to disclose the basis of his decision….
STYX -I wish Andrews were a Philip K Dick model, they only had a very limited lifespan – 4 yrs wasn’t it? It (andrews) could still do a lot of damage though, just look at its idiot mouthings a couple of days ago – since when it has been, thankfully, silent. The Cadaver claimed that he’d not spoken to it but can you imagine it being able to act as if sentient?
I was thinking more of the classical meaning, ‘a semblance of a thing,a sham, a travesty’ but I’ll pay speed freak Dick’s version also.
CONSTITUTIONALLY, currently all Australians are “non-citizens, see my blog http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH on that basis every single person in the Commonwealth of Australia can be deported because they vandalised it with unconstitutional legislation!
The magistrate did not maliciously overlook the Federal Government legislation at all. She did what the Framers of the Constitution specifically intended;
.
Hansard 17-3-1898 Constitution Convention Debates
QUOTE
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten
END QUOTE
Hansard 31-1-1898 Constitution Convention Debates
Mr. WISE (New South Wales).-
QUOTE
It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to exercise his practical power of nullification of that law by refusing to convict persons of offences against it. That is a means by which the public obtains a very striking opportunity of manifesting its condemnation of a law, and a method which has never been known to fail, if the law itself was originally unjust.
END QUOTE
QUOTE
Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.
END QUOTE
Calvin Coolidge, to the Massachusetts State Senate,
January 7, 1914
Can we please deport Ben Cousins then?
1. Ruddock and Andrews claim that they have much more on Haneef than was revealed during Haneef’s bail hearing.
2. By providing insufficient supporting evidence the prosecution has failed to have Haneef remanded.
3. There was therefore a choice made to withhold some incriminating evidence regarding Haneef.
4. This decision to withhold was justified on the grounds of “national security”.
This statement of the facts raises some very interesting and precise questions of fact:
1. Who made the decision to withhold? How much imput was there from Ruddock and his political advisors. What did Ruddock know about the facts and how did he know them?
2. Did Ruddock and Andrews know more facts about Haneef than the AFP and the government legal team?
3. If the answer to q. 2 is “yes”, then is this still the case?
4. If it is the case, then how does the Federal government justify its furtive approach to guarding Australia’s national security? Does withholding information constitute hampering the AFP in their task of protecting national security?
5. If the answer to q. 2 is “no”, then how did Ruddock know the answer is “no”?
6. A negative answer to q. 2 necessarily means that the Howard Ministry must accept some responsibility for Haneef’s bail hearing debacle, because if means that the Ministry and the AFP co-operated in being less than candid about evidence in a case that is vital to Australia’s national security.
The Government’s incompetency, slackness, and disingenuousness has endangered us all.
Very elegant logic, Katz.
How I would love to hear a response from our lords and masters.
Hear hear! But now their incompetence and political machinations are more obvious and criticism of the actions mounts they have decided to refrain from any further comment on the case. Batten down the hatches and avoid accountability . . . when the going gets tough the devious ones shut up.
Strong words in The Age’s editorial:
I heard Senator the Hon. Christopher Ellison say in Sydney in 2005 at a business forum that “terrorism is really just another crime”.
So why is our democratic system and the separation of powers doctrine (and hence the Australian Constitution) now being abrograted by the Howard Government?
Melbourne’s The Sunday Age newspaper says federal Attorney-General Philip Ruddock can ensure Haneef is deported immediately by withdrawing the Criminal Justice Certificate he issued last week.
It said such a move would contain any political fallout from a case whose legitimacy has come under question.
Quoting an unnamed government source, The Sunday Age said a number of senior political figures wanted the case “shut down� before more damage is done.
“Our best option is to cancel the Criminal Justice Certificate …. and that is my understanding of what our intentions are,â€? the source told the newspaper.
“Cancel the certificate and get this guy out of Australia.�
What a surprise – NOT.
The Age report. You gotta love this:
So now our security agencies have the responsibility for protecting the Government from
embarrassingshaming itself.This is worth a look too.
Why is my last comment in moderation?
Thanks for the second link, Gummo. It’s good to see that the security agencies are taking the menace of latte drinkers seriously. Not before time.
Stoush prevention, Greg. Enough said, I hope.
New Haneef post here, for dedicated thread crawlers.