Senate debates

Thursday, 9 August 2007


Legal and Constitutional Affairs Committee; Reference

11:44 am

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the Greens motion proposing a Senate inquiry into the Dr Haneef matter. Perhaps I could say more broadly that the first thing wrong with the motion is in the wording of the very first paragraph where Dr Haneef’s first name is spelt incorrectly. I note that the Clerk obviously corrected the error in the Notice Paper. Notwithstanding that, the amendment by Senator Bartlett seems to have also incorrectly spelt his surname, but in any event I am sure it is all well meaning. Leaving aside those errors as they are reflected, allow me to deal with the subject of the motion.

This motion is clearly different from that of the Democrat motion, which we dealt with this morning. While the Democrat motion proposed to look at the laws, the Greens motion proposes to look at the actions, investigation, decisions and information collated in relation to the Dr Haneef case. Let me say for the record: Labor opposes this motion. The reasons are quite simple. What this motion purports to do is this: it is a reference to allow the Senate Standing Committee on Legal and Constitutional Affairs to inquire into all aspects of the detention and release of Dr Haneef. These aspects include at point (a) ‘the source and veracity of the information upon which decisions were made’, at point (b) the Minister for Immigration and Citizenship’s actions and at point (d) the investigation by the AFP.

On these grounds alone, any senator with knowledge of or respect for the rule of law and any senator who respects independent law enforcement should not support this motion. In this matter, of course, senators would be aware that this case is still open, active and under investigation by the Australian Federal Police. What Senator Nettle proposes through the inclusion of point (d) is to review the source and veracity of the allegations even as that investigation is taking place. That, quite frankly, is an absurd proposition. It is completely inappropriate and entirely improper for legislators to be trampling through a criminal investigation that is on foot—might I say, not just a terrorist investigation but any criminal law investigation whatsoever.

The Senate does a lot of good things, but it does not act as a court, nor does it adjudicate in these matters in respect of criminal investigations. It is for these reasons that the Australian Federal Police Act 1979 imposes a separation of power such that the minister has no day-to-day power to interfere in investigations but instead must issue his directions in writing to the commissioner as the statutory head of the agency. The Greens—I am not sure they really believe this—apparently believe that there is a power to politically orchestrate investigations. I confess I cannot find this in the act, but its clear absence does not seem to prevent the Greens from believing this to be so.

For the benefit of the Greens—who as a party, to my knowledge, have never managed law enforcement agencies in the Commonwealth—allow me to explain this: about the most the minister could do in directly oversighting a case like Dr Haneef’s would be to be in receipt of regular briefings by the Australian Federal Police. If this is the information the Greens are seeking, they could—as I would have expected them to have done already—have sought such briefings from the Australian Federal Police, through the minister, so that they could understand what the proceedings have been, what investigations have been going on and what information has been provided. If this were the information that the Greens were seeking, I would imagine that they would be able to arrange such a meeting. The minister could certainly arrange it, if the minister were so inclined.

Having dealt with the point concerning the investigation by the Australian Federal Police, let me turn now to the review of Minister Andrews’s decision, which would be subject to an inquiry via point (b). It seems that, on the very day of the minister’s decision, Dr Haneef’s legal team announced their preparedness to launch a Federal Court challenge. That challenge is taking place as we speak. I do not know how many days have been laid down for the hearing. I know they met yesterday and the matter is continuing today. But, even if the hearing were to be completed today, that judgement would not be handed down ex tempore. It is unlikely that we will see a result in that matter, and then it will also be subject to whether or not there are appeal processes to follow. Yet here we have a motion that purports to inquire into a matter that is currently before the court. Let me place on the record my strong objection to this motion. It is an inappropriate course of action by this parliament, given that it is a matter that is currently being litigated as we speak.

Let me now address the inclusion of point (a), which goes to the veracity of the information upon which the decision was made. Broadly speaking, there are two classes of decisions made in this case: those under the Migration Act and those under criminal law. For the reasons I have outlined above—namely, that the migration decisions are before the court and, further, that the criminal justice decisions are still actively being made—it is inappropriate for the Senate to be inquiring into these matters at this time. A Senate inquiry may well be appropriate in the Dr Haneef matter at some point in the future, but it is inappropriate now. I will not rule out that a Senate inquiry may at some point be able to be proposed and may be supported by Labor, if that is any comfort to the Greens. But the point is that Labor has proposed and continues to pursue an independent inquiry conducted by a judicial officer. Such an inquiry could canvass the main issues in the case and, in particular, the interaction between the criminal law and the migration law and whether they may be harmonised in some way to lift some of the pressure off our law enforcement agencies. Such an inquiry should not take place, of course, until the investigations have been completed.

I am aware that this morning the Democrats also moved a motion to address the Dr Haneef matter. That motion was not successful in this place. It did suffer a more sensible drafting, though, which is a bonus—at least Dr Haneef’s name was spelt correctly. However, Labor indicated that we did not support that motion either—for many of the same reasons that we have already spoken about this morning. I think our position in respect of that does deserve to be placed on the record. The focus of the Democrats motion was in fact on the antiterrorism laws themselves. We do not consider that a parliamentary inquiry in the terms outlined in that motion—being proposed possibly three weeks out from a national election—would provide any benefit to the Australian public. In fact, the motion proposed an inquiry to report by 1 December 2007. By my calculation, the latest practical date for which the Prime Minister can call an election is around 8 or 15 December. Given the statutory minimum of 33 days notice, this means that the inquiry proposed will necessarily take place in the context of an actual federal election campaign.

Every party likes to say that we do not want to play petty politics with national security. Well, this motion, if supported, would in fact guarantee it. The most appropriate time to decide whether to conduct a review or examination of legislation relating to national security is, frankly, following an election, in the cold light of day, when clear, dispassionate thinking can and should prevail. In respect of the Dr Haneef matter, the opposition have, as I have already pointed out, called for the holding of an independent judicial inquiry. We have stated that the scope of this judicial review should be to determine whether or not the federal government or its agencies have mismanaged the charging, detention and release of Dr Haneef with respect to the proper application of Australia’s antiterrorism and migration laws. We are of the view that such an independent judicial inquiry into the Dr Haneef affair is now essential to ensuring public confidence in the government’s handling of this matter—and equally Australia’s antiterrorism measures.

Let us have a look at those laws. Dr Haneef was originally detained on 2 July 2007 under section 23CA of the Commonwealth Crimes Act 1914. The Crimes Act applies the following regime: initial arrest, investigation period with options for extension of live time under section 23DA and section 23CB, charging, bail and release. Section 23CA allows a person arrested for a terrorism offence to be detained for the investigation period, which is defined as beginning when the person is arrested and ending four hours later. This investigation period—or live time—can be extended by a magistrate under section 23DA to a maximum total of 24 hours. However, an application may be made under section 23CB to a magistrate to stop the ticking clock in order to allow investigators to collate evidence to conduct questioning. The period while the clock is stopped seems to be now colloquially referred to as ‘dead time’. If this is granted then the effect is to allow the Australian Federal Police to keep the suspect detained for an extra length of time, determined by a magistrate, while the live time is suspended. However, once the 24 hours of live time are actually used up in questioning then it ends.

In this case it seems that Dr Haneef was in what might be referred to as antiterrorism detention for something approximating a third or a half of the period he spent in detention. Let me repeat this: Dr Haneef was held under antiterrorism legislation for less than half the time of his detention. The rest of the time was spent in custody pending a bail decision, in immigration detention and in custody pending the posting of bail. It is worthwhile splitting those times up to understand that, when we talk about the total time, it was actually made up of various components—not all of that time should be collated and put at the feet of dead time. The Australian Federal Police went to a magistrate on a number of occasions to extend the total detention period provided under the antiterrorism legislation for as little as eight hours. So let us immediately dismiss the idea that the law in practice is not regularly reviewed or properly oversighted. The Australian Federal Police have to go to the magistrate. Let me also dismiss any assertion by those who say that these laws are manifestly unjust. Labor support these laws. They are important elements in our fight against terrorism and part of our national security. Labor make no apology for our support of strong antiterrorism measures.

There have been and will continue to be reviews of these laws, which is something that the Greens did not aver in their speeches today. There have been reviews of these laws and there will continue to be reviews. They need to be conducted, though, in a thoughtful and measured way. That is not to say that the laws could not be improved. As a result of this case, the law can be improved in order to enhance security and protect human rights, and the duty of all of us as lawmakers is to consider so doing. It is important to look at the way the laws actually work in practice—to look at them dispassionately and with all the facts—and to ask ourselves as a legislative body: how can we make them work better? The Senate inquiry proposed by the Greens into these issues in the shadow of an impending election, however, would have not enough time to be completed—not enough time to properly consider the issues—and would conflict with the court case on this point or conflict with an active police investigation into precisely the same matters. Therefore, these inquiries would in fact serve little purpose in terms of analysis and add no value in terms of outcome. Indeed, the only purpose I can see for these motions is an outright political purpose.

Labor gives no apology for voting down these inquiries, for supporting the separation of powers or for being very careful not to provide running commentary on matters that are currently either under ongoing investigation or the subject of continuing court action. This has been an important guiding principle in how we, as the alternative executive, have considered our actions. With these words I encourage senators to vote against this motion.

In dealing with some of the matters that Senator Nettle raised in this debate—the extraordinary use of these powers in extending the dead time and what might be regarded as the length of the dead time—you have to look at the dead time in itself, rather than combine it with bail or immigration detention. Putting that aside, this was an investigation that went across a number of countries—three at least—and across an extraordinary amount of information that needed to be examined, looked at carefully and considered. Those are the sorts of provisions which the magistrate has before them in making decisions about whether or not to extend it. Labor has been a strong supporter of ensuring that there is proper judicial oversight of these powers, which are there to ensure that there is not an abuse of the process, and no-one has pointed to that at this time.

We can come back to this in the cold light of day and have another look at it, but I would encourage all senators to look at the number and range of reviews of this legislation that are currently underway and the range of oversighting bodies and parliamentary joint committees that have responsibility to ensure that this legislation works effectively. The Sheller review looked at these laws in 2005-06. They are the matters that I wanted to raise today and I encourage senators not to support this motion.


No comments