[Update: I found this op-ed by Julian Burnside pretty compelling.]

The way that the imprisonment, interrogation, bail release then immigration detention of Dr Haneef is playing out is really making me feel physically ill, and deeply ashamed of my country. And while this is a tech law blog, and I’m not a terrorism or criminal law or immigration expert, I just feel like I need to put my 2c out there, if only for the sake of my own sanity.

Over the fold, I’ve commented on four aspects of these developments that have shocked me to the core: the fact that the legislation seems to allow for unlimited periods of detention without charge; the breadth of the terrorism provisions, the territorial reach of Australian law in this area, and finally, the complete disregard of the rule of law displayed by government ministers, in particular, Kevin Andrews. The whole thing makes me wish I were citizen of a country whose government actually thought civil liberties, democracy, and the rule of law were important.

My first shock came in following the detention situation, and the fact that the law apparently allowed unlimited periods of detention without charge, rather than a final deadline. The fact that detention without charge can be renewed an unlimited number of times to me seems absolutely shocking. To hear the Attorney-General argue that the detention without charge was ‘limited’ because a magistrate must deem the detention ‘reasonable’ seems to me to be just ludicrous, once you think, for just a moment, about how these processes are going to work in practice. The time to set a limit on detention without charge is before any actual concrete situation arises or individual person is detained – when we can be dispassionate (relatively speaking), and decide what is reasonable in the abstract. Putting the decision in the hands of a magistrate is far more likely, it seems to me, to lead to detention being longer. Who wants to be the magistrate who let someone out who later turns out to be dangerous? Wouldn’t you err on the side of detention? It’s unfair to put that pressure on a single individual. Limits ought to be set in legislation.

This is without even considering the psychological effect on the detainee. Such a detainee will be advised by their lawyers that they cannot say how long they will be detained; that there is no final deadline. Such uncertainty must impact on the effect of the detention.

Then I spent a bit of time, with a friend of mine, on Sunday morning, looking at the provisions of the Criminal Code under which changes were laid against Dr Haneef. Here came my second shock: the breadth of the provisions. Dr Haneef was charged under section 102.7(2) of the Criminal Code, part of the Commonwealth Criminal Code Act (you have to scroll down), which proscribes ‘providing support for a terrorist organisation’. Under that section, the prosecution has to prove that Haneef

  1. intentionally provided to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
  2. the organisation was a terrorist organisation; and
  3. he was reckless as to whether the organisation was a terrorist organisation.

‘Terrorist organisation’ is defined broadly: as an organisation already prescribed in the regulations, or “an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs)”. “Organisation” is also defined, as a body corporate or an unincorporated body, whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

What’s shocking is the breadth of these provisions: something which has truly been brought home in the last week or so, with the charge against Haneef. On the face of it (and, one imagines, to the legislators) ‘support and resources’, you would expect, means ‘material’ support or resources – something that makes a real difference, such as, for example, providing the materials or advice that leads to the making of a bomb (this sense would be backed up by the fact that the sentence is 15 years. So it must mean serious resource-supplying, right? That’s what legislators would have been thinking about). But if you think about it more deeply, the phrase doesn’t have limits on it – anything you give a ‘terrorist organisation’ might count, like, say, a SIM card. It follows the tradition of this government in writing legislation (something I’ve commented on in copyright) – draft the law broadly, and leave it to the discretion of the executive – such as the DPP – to decide what’s a reasonable charge.

Then you think, oh, well – ‘terrorist organisation’ is a limiting factor, right? If you give something – like mobile phones, or the like – to an organisation that is terrorist (or you are reckless that they are terrorist, reckless meaning ‘aware of a substantial risk’ that they are and know it is unjustifiable to take that risk) then maybe you are doing something wrong. But the definition of terrorist organisation is drafted broadly too. And again, we have that same problem. It’s been drafted broadly, I would guess, with the intention of capturing terrorist cells and other such mini-organisations or loss associations. That, no doubt, is what was in legislators’ minds. But that again relies on the DPP/executive to exercise their discretion to charge advisedly. It’s hard to do that when you have a real situation and a real suspect, because no one wants to be the one who let the terrorist go. Once again, I say, these decisions need to be made by legislatures, advisedly, and with time and an element of dispassionate analysis.

All that said, my gut reaction, and that of friends over the weekend, was that the Prosecution was going to have some difficulty on the facts so far related: in showing recklessness, in showing there was a terrorist ‘organisation’ here that Haneef could be reckless about.

My third shock came when I looked at the territorial reach of these laws. The news seemed to indicate that Haneef had given the mobile phone before he moved to Australia, and that all the acts occurred in England. So we looked at the geographical reach of these laws. Under s102.9, ‘Section 15.4 (extended geographical jurisdiction–category D) applies to an offence against this Division.’ So what does s15.4 say? Well, under that provision, the offence applies:

  1. whether or not the conduct constituting the alleged offence occurs in Australia; and
  2. whether or not a result of the conduct constituting the alleged offence occurs in Australia.

In other words, it doesn’t matter where the offence occurs, or whether the offenders are Australian or even permanent Australian residents or Australian residents. You could be charged under this provision even if you were in transit in an Australian airport. Remarkable, and a great advertisement for visiting or working in Australia, ne c’est pas?

So far I’ve suffered three major shocks. First, the removal of civil liberties by allowing potentially indefinitely prolonged detention without charge. Second, the breadth of the potential activities caught by these laws. Third, the geographical reach.

And then we have the bail decision, and the subsequent decision of Kevin Andrews to impose immigration detention. Kevin Andrews has argued, correctly in law, that he is entitled, indeed required, under Migration Law to consider the character of persons holding visas; that different standards are applied here to the ones involved in making a bail decision, that a suspicion of association is sufficient to lead to the potential for a person to fail a character test. All that may be strictly true, in law. And deeply twisted, even perverted, as a matter of general principle and observance of the rule of law.

What I find utterly appalling and practically unbelievable is the disregard this shows for the rule of law and separation of powers displayed by a serving Minister of the Australian government. The legal process of granting bail ought not to be completely sidelined by an immigration decision. If the police consider Haneef a danger, all the evidence supporting that view ought to have been put to a magistrate in the making of the bail decision, and thus considered, by an independent judicial arbiter. Having submitted the material to that process, that ought to have been the end of it. Having received a decision that he is not a danger to the Australian public, that decision ought to be accepted. If further evidence arises, bail can be sought to be revoked. To hold over the head of a person, and then apply, another power to detain, seems to me to show a disregard for and distrust of the courts that will inevitably undermine confidence in the court system, as well as civil liberties.

The government has coined a new method. Shock and appall. They are now applying it against their own population. And it makes me wish I were citizen of a country whose government actually thought civil liberties, democracy, and the rule of law were important.

update: more at Larvatus Prodeo, Surfdom, Troppo, Andrew Bartlett, Marcellous

And in the media, see this op-ed by Haneef’s lawyer; this editorial in the SMH; this comment to the Herald Sun by Julian Burnside QC; this comment by Senator Bartlett (Crikey); this comment from Thomas Hunter on Crikey…