Senate debates

Thursday, 9 August 2007


Legal and Constitutional Affairs Committee; Reference

Debate resumed from 8 August, on motion by Senator Nettle:

That the following matter be referred to the Legal and Constitutional Affairs Committee for inquiry and report by 15 October 2007:All aspects of the detention and release of Dr Mohamed Haneef, including:(a) the source and veracity of information upon which decisions were made;(b) the actions of the Minister for Immigration and Citizenship (Mr Andrews), including his overriding of the Brisbane Magistrate’s Court decision to grant bail to Dr Haneef;(c) the role of other ministers, including the Attorney-General (Mr Ruddock) and the Prime Minister (Mr Howard);(d) the investigation by the Australian Federal Police and other agencies;(e) the decisions taken by the Director of Public Prosecutions;(f) the international impact on Australia of the Government’s handling of the case; and(g) any future decisions to be made in relation to Dr Haneef.

11:21 am

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I return to the debate that occurred last night about whether or not the Senate should have an inquiry into the detention and release of Dr Mohamed Haneef. The Greens are proposing this Senate inquiry because we, like others, have watched the case of Dr Haneef unfold before our eyes in the last few weeks and months, and we have had significant concerns about the way in which the laws have been implemented in that case. We have also had concerns about the commentary that has gone with that, particularly that which has been put forward by senior government ministers in relation to this matter, and about the conduct of the ministers involved.

The Greens proposal sets out quite broad terms of reference for a Senate inquiry, which will enable us to look at the role of the Minister for Immigration and Citizenship, Mr Andrews; the role of other ministers, such as the Attorney-General and the Prime Minister; the investigation carried out by the Federal Police; and the decisions taken by the Director of Public Prosecutions. It also will allow us to look at the international impact on Australia of the government’s handling of the case of Dr Haneef. So it is quite wide ranging. We attempted not to limit it, because there are a range of issues that have been brought up by this case of Dr Haneef.

I spoke briefly last night about some of these issues and about how we saw the case of Dr Haneef unfold, with the events in London and Glasgow and then the link to Australia. I spoke about the Daily Telegraph newspaper in my home state, which had a photograph of one of the Gold Coast hospital doctors questioned as part of this investigation and a great big headline saying, ‘The enemy within’. The photograph was of an Indian-born and trained doctor who was working in the public hospital system in a Gold Coast hospital. So there was a very strong message sent out to the community through media, government ministers and public commentary at the time about the seriousness of this particular issue.

I was also saying last night that the detention of Dr Haneef was the first instance we have seen of the use of powers given to the Federal Police in 2004 under the terrorism laws—the ability to hold somebody indefinitely without charge. The court has to approve the extensions of time along the way, but the law allows for somebody to be held continuously and indefinitely on the issue until they are charged. As I said last night, that is an absolutely extraordinary departure from the way in which the criminal justice system has operated in this country and in comparable Western democracies all around the world.

When that legislation was introduced into the parliament, there was some discussion about how long people could be held. It was an issue that, understandably, people in the community were very concerned about. So we were asking questions about how long somebody was likely to be held under the power that in 2004 was being proposed for the Australian Federal Police. The person answering questions on behalf of the government was a representative from the Attorney-General’s Department, Mr Geoff McDonald, who is the Assistant Secretary of the Security Law Branch. He told the Senate inquiry that it would be extraordinary if somebody were held for as long as 24 hours, which was what was being suggested as a possibility. He said that the courts would consider 16 hours to be a reasonable period of time and that that was a precedent that had been set in the Victorian courts. The courts considered 16 hours to be a reasonable period of time. So that was the message that was sent to the parliament when the government was saying to us, ‘Give extraordinary powers to the Australian Federal Police in order to be able to hold somebody indefinitely without charge.’ Understandably, I was concerned about how long people might be held, and the answer we got from the government was that in an extraordinary circumstance somebody might be held for 24 hours.

What we saw in the case of Dr Haneef was the first instance of these laws being used. The first time they were used by the Australian Federal Police, Dr Haneef was held for 12 days—over 200 hours. The parliament had been told that it would be extraordinary if somebody were held for 24 hours; Dr Haneef was held for 12 days. I think that that by itself is a reason for having a Senate inquiry into the terrorism laws and the way in which they were used in the case of Dr Haneef—because the parliament was told, when we asked questions about how long somebody would be held, that it would be extraordinary if someone were held for 24 hours, and yet the first time the government used these extraordinary powers, which they were given with the support of the opposition, it was to hold somebody for 12 days. So there are matters we need to look into. Was the parliament misled about how these powers were intended to be used? If we do not have a Senate inquiry, we will be unable to look into this matter and all the implications of the case of Dr Haneef. That is one in particular that I can point to, but there are others as well.

As I said, I think that that on its own warrants us looking into how these terrorism laws were used in the case of Dr Haneef, but in the case of Dr Haneef we have other issues which do not necessarily relate just to what our terrorism laws are. They relate to the implementation of those laws by the Australian Federal Police, by the Director of Public Prosecutions and, indeed, by the immigration minister, Mr Andrews. There were mistakes made, and people have acknowledged that—although it is a little unclear who made the mistakes. Was it the DPP? Was it the Australian Federal Police? Was it Scotland Yard? There was a lot of blame going around and not a lot of responsibility, but everyone acknowledges that mistakes were made. That is the kind of thing that we need to understand: how and why did that occur? Were the Australian Federal Police operating under such pressure from the federal government to come up with a charge for Dr Haneef that we saw pressure put on people in that working environment and mistakes made by the Federal Police or by others? We do not know the answers to those questions and, until we have an inquiry, we are unable to determine the answers to those questions.

It needs to be a public inquiry because we have seen public confidence in the government’s ability to handle these matters fall dramatically as a result of the case of Dr Haneef. We need to have a public inquiry, not an internal investigation by the Federal Police, although that may be warranted as well. It needs to be a public inquiry so that people can understand. I would have thought that public confidence in the government’s ability to handle the issue of terrorism was something the government itself would want. I would have thought that it would be something the government, the opposition and others in here would support. We need to have that.

I recognise that there have been calls for a number of different types of inquiry. The Premier of Queensland, Mr Beattie, said we should have a Senate inquiry. That is what the Greens are proposing here today. Others have suggested a judicial inquiry. I think there is merit in the idea of having a judicial inquiry, but we are not able to make that happen. We are able to make a Senate inquiry happen, and that is the opportunity that, on behalf of the Greens, I am presenting to the parliament today.

I am saying to members of parliament: this is an important issue. Do you want the public to have confidence in the government’s ability to deal with issues relating to terrorism? Do you recognise that that has been shaken, if not dismantled, through this case of Dr Haneef? Here is an opportunity for us to look into that matter, for us to determine what mistakes were made, how mistakes were made, why mistakes were made and what changes need to be made to the legislation because of the case of Dr Haneef. A range of matters need to be inquired into here, and that is why the Australian Greens are proposing this.

I want to touch on a couple of issues. I want to touch on the amendment that Senator Bartlett has proposed in relation to this proposal that I am putting forward. I am quite happy to accept Senator Bartlett’s amendment. It goes to the issue of the power of the immigration minister to cancel somebody’s visa. I am quite happy to accept that amendment Senator Bartlett is proposing because I do think we need to look into this matter. This goes to the conduct of the Minister for Immigration and Citizenship, Kevin Andrews, at the time. Everyone will remember—I certainly remember; I was here in Canberra on the day—when the Brisbane magistrate looked at the evidence against Dr Haneef, made the decision that it was not strong enough for him to be refused bail and granted him bail. It was within an hour and a half that the immigration minister held a press conference to tell people that he had cancelled Dr Haneef’s visa and that Dr Haneef would not be free to live in Australia whilst investigations continued. No, he would be put into immigration detention in Villawood.

We need to look at this matter. That is an extraordinary power that is given to the immigration minister of the day: under section 501 the minister can cancel somebody’s visa on character grounds. The Greens opposed that when that was brought into this parliament. We are on record saying that we did not think that was appropriate. But it is even less appropriate in this case, because we saw what Mr Andrews, the immigration minister, did: he cancelled the visa before Dr Haneef had his day in court. I understand that the immigration minister cancels around six visas a week on character grounds. I have concerns about that as well. But Dr Haneef’s visa was cancelled before he even had his day in court. Those other six visas a week which the immigration minister cancels relate to cases where a person has been convicted of a crime, and then subsequently he makes the decision to cancel their visa. I have issues with that because I think it is double jeopardy: if you have served your time, you should not be punished again. But in the case of Dr Haneef he went even further: he cancelled Dr Haneef’s visa before he had even had his day in court.

So there are significant issues that need to be explored, not only around the existence of that power of the immigration minister but also around the way in which it was exercised in this case, and they need to be explored by the parliament. They are not matters that can just be left to a judicial realm. We need to understand what influences, what pressure, the immigration minister was put under. I do not know. We need to understand that so that we can recognise how the laws that this parliament passes are being used, misused or abused—whatever it may be—by the government of the day. We need to have an inquiry into that so we can understand the implications of the laws we are passing here and the implications they have on the lives of ordinary people. I do not want to see any more people go through the experience Dr Haneef went through.

I am not able to say what all of the circumstances were in relation to Dr Haneef, but I am able to say that I think we have seen in the exercise of the terrorism laws, firstly, a concern about the broadness of those terrorism laws such that they can encapsulate innocent people. Whether or not that is the case here I do not know, but they are so broad that innocent people can be caught up in them. I think we have also seen significant problems in the way in which those terrorism and migration laws were implemented by the Federal Police, by the DPP, by the minister for immigration and, importantly, by the Attorney-General and the Prime Minister, who made substantial comments about this matter in the media whilst it was still before the court, continuing to try to smear the reputation of Dr Haneef. Many of those comments have caused, and continue to cause, concern for people in the community.

I met on Monday with a range of very senior Indian doctors who work in hospitals in Sydney. They talked with me about what they are hearing from their colleagues and what they themselves are experiencing in terms of discrimination in their workplaces as a result of the case of Dr Haneef. The immigration minister should be coming out and saying, ‘We value the role that overseas trained doctors bring to the public health system in this country.’ That is what the immigration minister should be doing. Rather than ordering a review into ASIO checks of all the doctors and claiming that we now have evidence that overseas trained doctors are linked with terrorism, which is what the immigration minister did on Sunday, he should be making a clear statement about the value that overseas trained doctors bring to the public health system in this country.

So there are a range of matters that we need to look into. The legal profession has been at the forefront of highlighting what those issues are and what those concerns are. This is an opportunity, through a Senate inquiry, for us to look at the range of matters that have been brought to light through the case of Dr Haneef. They do not deal just with the terror laws; they look at immigration matters, the implementation of the laws and the involvement of government ministers in the decision making in the case of Dr Haneef. We have had calls from all sections of the community for us to have an inquiry into this matter, and this is the opportunity. This is the occasion when we can say: ‘Yes, it’s an important matter. Yes, we think it needs to be looked into. There are lessons that need to be learned from this.’ That is the opportunity that the Greens present to the parliament this morning. I urge all senators to support us in having an inquiry into this very important matter.

11:36 am

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

I stand to oppose this motion from Senator Nettle and the proposed amendment by Senator Bartlett. At the outset I want to say that every senator has a right and entitlement to express their views in this Senate chamber. Senator Nettle has been very strong and vigorous in putting forward her views and her concerns with respect to the procedures regarding the visa that has been removed from Dr Mohamed Haneef. Senator Nettle is entitled to do that; she is entitled to put a point of view. But a Senate inquiry is something that I strongly disagree with. Senator Nettle has opportunities to express her views or concerns with respect to the way that this matter has been conducted, the role of the minister, the role of the Australian Federal Police, the role of the DPP and so on and so forth. She can do that, of course, with an adjournment speech or through a motion to the Senate. But a Senate inquiry, which is the subject of the motion that is before us, is something that simply cannot be supported.

There are a number of reasons why it cannot be supported, and I would like to walk through those reasons with the Senate so that it is quite clear to Senator Nettle and Senator Bartlett and others. I say again that they are entitled to put their view and express their concerns in an open democracy such as Australia, but, if a Senate inquiry did take place, I believe it would be very bad public policy. Legally it would be fraught with danger. One of the reasons I say that is because today the Federal Court is hearing an appeal by Dr Haneef’s lawyers with respect to the decision by Minister Kevin Andrews to cancel Mohamed Haneef’s visa. In fact, the hearing began yesterday in the Federal Court in Brisbane, and I understand it is continuing today before Justice Jeffrey Spender.

Surely good public policy and good public practice is to not conduct Senate inquiries into matters that are before the court. Yes, I am a lawyer, and there are many lawyers in this place who would be well aware of the importance of due process. There are concerns that I have and others would have with respect to sub judice and bringing matters that are before the courts before a Senate inquiry. It could certainly prejudice the outcome of that case. So, while proceedings are before the court, I strongly oppose any inquiry into the matters that are being referred to by Senator Nettle and no doubt will be referred to by Senator Bartlett.

The motion also talks about the importance of inquiring into the role of the Australian Federal Police and the role of the Director of Public Prosecutions. We have heard from the Australian Federal Police that there are ongoing inquiries, and it is entirely inappropriate to be looking into matters which the police are currently investigating. We have had no end of advice on this side of the Senate from Senator Ellison, Senator David Johnston and others, who have indicated very firmly and strongly that it is totally inappropriate to be providing information or advice regarding police inquiries—whether it is the Australian Federal Police or state police or any other similar entity. Of course the DPP has a particular role to play. If the senators opposite want to look at the legislation and want to express a view about the role of that in general, of course they are entitled to do that in different forms and different ways in the public arena.

The motion refers to the merit of inquiring into not only the role of the Minister for Immigration and Citizenship, Mr Andrews, whom I will come back to shortly, but also the role of the Attorney-General and the Prime Minister. Goodness me, this is a far-reaching inquiry that has been recommended by Senator Nettle and the Greens! I think that is definitely going too far. In terms of the role of Minister Andrews, I want to put on the record that I used to be a colleague and an associate of Minister Andrews during my time as a young lawyer in Melbourne in the mid-1980s. Since then I have had the highest possible regard for Kevin Andrews and his capability, his skills and his professionalism. As far as I am concerned, based on the advice that I have received and the information I am aware of, he has acted entirely within the law. He has acted in accordance with the Migration Act. He has acted in accordance with the Solicitor-General’s advice, which has been made public. He has acted in accordance with that advice—that is, that his advice was within the law. He has discretion and he has acted within that discretion. The Solicitor-General’s advice, as I have indicated, has been made clear and made public. Minister Andrews has acted based on a ‘reasonable suspicion’. That is what the Migration Act says. If Senator Nettle or others in this place wish to put an amendment to change that act, to change the test that is relevant to whether the minister should or should not have discretion to form a reasonable suspicion, then they are entitled to do that.

Of course, with respect to the matters of criminal law and matters before the court, there is a different test. This is where the media, in my view, have become quite confused; they have confused those two tests. The minister is acting within his discretion, in accordance with the Migration Act, in accordance with that law, and he has formed a reasonable suspicion to revoke that visa. But, with respect to the Australian Federal Police and the DPP, obviously they have had to form a view, the test being ‘beyond reasonable doubt’. That is a different test, and you would say it has a higher threshold that needs to be met. They are the two different tests that apply. I want to say that, yes, the minister, in my view, has acted in accordance with the law and he has formed that reasonable suspicion. The view that he has put has certainly been backed up by the Solicitor-General.

I want to comment on the views of federal Labor, because they are different to state Labor. The view of the Labor Party in Queensland, put by the Premier, called for a Senate inquiry, which was noted by Senator Nettle. But federal Labor and Kevin Rudd have called for a judicial inquiry. No doubt Senator Ludwig will speak to those points shortly, but I see that as reeking of political opportunism for a good headline in the lead-up to an election. The media are certainly a part of this, highlighting the concerns that have been put by various stakeholders in the community. But federal Labor have called for a judicial inquiry, and I am concerned that they would do that, particularly when litigation is afoot. I will not delay the Senate any longer. For all of those reasons, I very strongly want to oppose the motion that has been put by Senator Nettle and the amendment to be proposed by Senator Bartlett on behalf of the Democrats.

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.

12:02 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

The Australian Democrats have maintained all along that the matter involving Dr Haneef is worthy of investigation. We do not believe, however, that the motion proposed by the Australian Greens is the best mechanism through which to have that inquiry. I understand the intent behind the motion moved by Senator Nettle and, as I have indicated repeatedly in this place over the last couple of days, we support an inquiry into the handling of the Haneef case, just as we support a broader and more comprehensive inquiry into the legislative framework for antiterrorism legislation in this country. We would support separate inquiries into the matter. We would support an inquiry into the Haneef case that is independent—it may be a judicial inquiry, as has been proposed by the opposition. Personally, I think that that is an appropriate way to proceed. Prior to the Labor Party’s suggestion of a judicial inquiry, I suggested an Ombudsman’s inquiry for similar reasons: because it should be independent, it should not be conducted by politicians and it should not be conducted—as you, Mr Acting Deputy President Barnett, pointed out—while there are matters before the courts. The Ombudsman has the capacity to operate as the Law Enforcement Ombudsman and therefore can investigate the practices, policies, procedures or processes—I am paraphrasing a bit broadly here—when it comes to the Australian Federal Police. I understand that the AFP has yet to come to grips with the scope and the broad mechanism of the powers that have been granted to it by the government. Certainly it is early days and obviously the Haneef case is the first test, as we keep hearing, of relatively recent antiterrorism law, but there are very good grounds for the Ombudsman to play that role. Having said that, we also support the judicial inquiry, for the reasons that have been outlined by the opposition.

Secondly, we support a separate inquiry into the antiterrorism legislation. I hear the concerns expressed by Senator Ludwig, or the rationale for the Labor Party’s decision to vote against the proposal today for a Senate select committee inquiry. Obviously I am disappointed. I think that, if the issue of time lines was a standout concern or reason for the opposition to oppose that motion, we could have quite happily negotiated or discussed a time line. But, having said that, that leaves me with the option of reintroducing the motion, or a comparable inquiry, after the election. To quote Senator Ludwig—and I know that he was not necessarily accusing me of this—this is not ‘playing politics with national security’. In fact, it was an attempt to do quite the opposite: to have an inquiry into legislation and the antiterrorism legislative framework away from—yes, in the light of—the Dr Haneef case. That is inevitable, given that it is the first test case. People keep referring to the 2005 antiterrorism laws, but there are laws preceding that that affected the Haneef case. We also do not know the extent of involvement of ASIO and its legislative powers in that case. There are a lot of issues there that are worthy of investigation but which cannot be investigated at this point of time and certainly not through the proposed fact-finding mission that the Greens have put forward today—it is a flawed mechanism, I am sorry to say. The AFP has advised that the investigation into Dr Haneef is continuing, meaning that most of the evidence that could be put to a Senate inquiry would be classified. I am not sure if the committee process would actually derive the kind of information that would satisfy senators. The fact-finding purpose or mission proposed by this reference would not necessarily allow the facts to emerge in any case.

Therefore, I still maintain that these matters would be better dealt with by a judicial inquiry with wide-ranging powers that would include the ability to compel interested persons, including ministers of course, to give evidence. A judicial inquiry, or indeed an inquiry by the Ombudsman, would allow for a truly independent consideration of the factual matters giving rise to the unsatisfactory outcome of the Haneef affair. As I said, I do not want politicians to be responsible for that particular inquiry. As Senator Ludwig has pointed out, there is precedent for a political or parliamentary inquiry into the facts after a judicial inquiry or a report comes down. There will still be an opportunity to look into those matters, but it is not appropriate to do so at this point.

Apart from this, I believe it is also clear from the Haneef affair that the extent of the broad-ranging powers that are granted to law enforcement and intelligence agencies has gone well beyond what was envisaged by the parliament. Certainly that has been evident in quotes from members of the bureaucracy and departmental comments and, indeed, comments made by government members themselves on the record in the committee inquiry. When the laws passed, I do not know if people actually envisaged the extent to which they would be used generally and maybe specifically in the first case. I do not think anyone really expected—or maybe they did—that a suspect could be held for almost a fortnight without charge. The nature of the charges levelled against Dr Haneef has made the public question, I believe, whether or not terrorism has been broadly defined. Hence, one of the objectives of the proposal for a Senate select committee inquiry is to examine some of these issues.

I acknowledge Senator Ludwig’s kind comments about the drafting of the proposal. I am pretty proud of it and do not think there are any errors or grammatical mistakes. Having said that, people can scrutinise it closely. My aim was to make the committee reference as balanced and objective as possible so that anyone of any political party in this place could bring their own views or perspectives to the committee and argue their case. I think there are strong grounds for it at this point, particularly in the light of the fact that we have passed more than 40 pieces—

Photo of Robert RayRobert Ray (Victoria, Australian Labor Party) Share this | | Hansard source


Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

It is 32 according to Senator Ray. I have included in my tally just about every piece of legislation, but we can agree that there have been between 30 and 40 pieces of legislation that have had some impact on, if not had the primary role in determining, Australia’s antiterrorism legislation. It is time. Why not look at how they interact? Why not look at some of the issues that we are suggesting? Do the pieces of legislation adequately safeguard citizens from the threat of terrorism? Do they adequately provide a balance between the need to curtail individual freedoms in situations involving a terrorist threat and the fundamental civil liberties and human rights of citizens? Have they affected fundamental principles of justice, such as habeas corpus and the presumption of innocence? We might all have differing views on this, but I am not sure that we do. This is with all due respect to Senator Ludwig’s comment about the constant review. I do not believe we have investigated the myriad laws and, importantly, how they interact with each other, let alone what actually happens in practice when these laws are being used or tested.

We believe it is appropriate to thoroughly test and investigate our antiterrorism laws. The time line for that may not have been the preferred one for the opposition or indeed the government—although I am more than happy to hear the government’s rationale for voting down the select committee. Without wanting to reflect on a vote of the Senate this morning—obviously the select committee proposal did not provide us with an opportunity for debate in the same way that this committee reference has—it would be good to have on record why the government opposed this reference. I do not think it would necessarily not be in the government’s favour. You never know, it might serve a government purpose to put forward a defence of the antiterrorism legislation. It may even set the ground for them to launch further legislative proposals. I would like to know the government’s views.

To get back to the issue of the time line, I do not underestimate the difficulties in an election year. I know that most of my colleagues are going to be on the campaign trail. It is going to be difficult once parliament is prorogued; although that would not necessarily affect the operation of a Senate select committee. I know that sometimes it is difficult to chew gum and walk at the same time. As senators, many of us are privileged to have long terms. Some of you in this place are only halfway through those terms. I am sure that a few weeks on a Senate committee would be a possibility. Bearing in mind that a reporting date of 1 December may be too difficult for the parliament, let us move to extend it and come up with a different date. The government can initiate their own. I just genuinely believe that a cross-party comprehensive investigation of our laws is not a bad thing. It does not necessarily have to serve anyone’s political purpose. It is not about playing politics with national security; it is just about doing our job as legislators.

I will continue to pursue this. You never know, I might be here on 30 June next year still saying, ‘Please support my Senate select committee proposal’ and failing miserably. Nonetheless, I have got that point—

Photo of Robert RayRobert Ray (Victoria, Australian Labor Party) Share this | | Hansard source

It is a Saturday.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Is it a Saturday next year? You never know, I may be here on the Saturday. Maybe in anticipation of my relevance deprivation syndrome, Senator Ray, I will still be hanging about the place saying, ‘Don’t let me leave; I don’t want to go!’

Back to the matter at hand, as I have said, the Australian Democrats will not be supporting the proposal of the Greens. We certainly understand and support the intent behind the motion. An investigation into the handling of the Haneef case is a good idea. Do I want the parliament to do it? No. At this stage, while there are matters of sub judice and while we have an appeal pending, definitely not. I do acknowledge that my colleague Senator Bartlett is to move an amendment to this motion, with very good reason. Obviously, if this motion were to pass the parliament, there would be broader issues to do with migration law that would also be worthy of examination. Whether or not this inquiry proceeds, the Democrats are certainly as one in believing that it is not the most appropriate mechanism. For that reason and the other reasons I and other colleagues have outlined, we will not be supporting Senator Nettle’s motion today but understand the idea behind it.

12:15 pm

Photo of Robert RayRobert Ray (Victoria, Australian Labor Party) Share this | | Hansard source

It is not often I address the Senate on national security matters and say that the minor parties, the Greens and the Democrats, come with a genuine approach, but they have—I acknowledge that. They are genuinely concerned about these issues. But I think it is wrong to link the antiterrorism legislation with the failures in the Haneef case. There is not much linkage at all. And it is not true to say that this series of legislation is not reviewed. The Sheller committee reviewed a whole range of legislation. The Joint Standing Committee on Intelligence and Security reviewed the questioning and detention regime with regard to ASIO and are currently completing their review of the proscription regime.

However, having 32 pieces, at a minimum, of antiterrorism legislation is not good for an understanding in the Australian community, and there is a strong case for consolidation. The UK has four to five pieces of antiterrorism legislation. One thing I want to again draw to the attention of this Senate is the recommendation by the joint intelligence committee—unanimously carried by four Liberal, one National and four Labor members—of the desperate need to set up an independent review of all terrorism legislation on an annual basis, based on the UK model. What happens in the UK is that Lord Carlile reviews antiterrorism legislation each year and makes recommendations to the House of Commons. I cannot imagine why we cannot go to that process—the consolidation and finetuning of legislation by someone who does not have a partisan political barrel to push.

The government are yet to respond to that recommendation. I urge them, and I urge the minister at the table, Senator Johnston, to seriously look at that recommendation. It is not a matter of partisanship—otherwise five of his colleagues would not have signed up to it—but it is a way to cut the Gordian knot.

The more I look at the Haneef matter, the more I am not sure it is a question of the legislation. If there are faults in the legislation, they are more faults in criminal law legislation than antiterrorism legislation. One day we may have to address those provisions relating to how long someone can be detained and under what circumstances, but I do not see it as a failure of national security legislation in this place.

But we have to address the fact that problems have occurred—that the Australian Federal Police have acted on and disseminated information that was not correct. Do not take this as a major criticism; everyone makes mistakes. That is why you have rubbers on the ends of pencils. But, nevertheless, when mistakes are made we have to examine them to know how to avoid them in future. It is even clearer that the DPP made mistakes, given the press conference by Mr Bugg and the dropping of charges. We are entitled to know why the mistakes occurred and what they are going to do to rectify them into the future.

But I tell you what has distressed me, someone who was on the security cabinet for six years and has been on the national security and joint intelligence committees for eleven years: how did all this material get in the public domain? How did it all flood out into the newspapers and who disseminated it? Was it ministerial officers? Was it the DPP’s office and staff? Was it the Federal Police? Was it the defence team? One party I can find guilty straightaway is the defence team, but only in terms of retaliation. There was a mass of material put into the public domain from somewhere. This is not conducive to fair treatment of persons detained and it does smack of panic and sensationalism. We have a requirement on law enforcement bodies that they do not disseminate such information.

At the moment, worldwide we have a clash between intelligence agencies and law enforcement agencies of philosophy and methodology. On one hand the intelligence agencies protect their information. They value secrecy. Police have always had to put information out to get more information back. I am not criticising the police for doing that—that is part of their investigative technique—but, when you bring intelligence and law enforcement together dealing with secret information, that can become a fundamental problem. I noticed in the UK recently the police denying that they had leaked a particular matter because their favourite journalist had not covered it and it was someone they did not know. That told me a lot about the culture of putting stuff in the public domain.

The critical point of this motion put forward by Senator Nettle is that Senator Nettle wants a parliamentary inquiry. I do not at this stage; I want a judicial inquiry. Let me list the reasons. Firstly, there is a lot of confidential and secret information that is pertinent to this case that will never be released to a parliamentary committee, whether it meets in public or in camera. But you can do that in a judicial inquiry, and that is much more likely to get a result. This is what will happen if this motion gets passed today—it will not, but if it did; let us pretend. It will then go to a committee with a government chair and a government majority, who will then set the timing of the hearings, set the witnesses and set the tone, and it will just become a political circus. The opposition members and the minor parties will be demanding these witnesses appear; the majority will overrule them. They will demand these papers be produced; the majority will overrule them. It will turn into a circus. That is not the intention of anyone in this chamber, I might add, but that is what will happen. Whereas with a judicial inquiry we can get a considered view from a judge, sometimes meeting in camera for the more sensitive material and producing something that will assist not only the parliament but also the executive government.

One of the most distressing things about this case and the trend worldwide is this: there does exist antiterror legislation, but there also exists a tendency of the Capone clause coming in—you cannot convict anyone on antiterror legislation, so you use secondary legislation to punish them, to detain them and to hurt them, and that was never the intention of that legislation. If this government wants to introduce secondary legislation as a safety net, where it misses terrorists on one point and fixes them up on another, it would at least have a case. But here these legislative instruments—these clauses and conventions that they are using—all exist for another purpose. It is not good enough to say: ‘We suspect Dr Haneef of this, we can convict him of nothing, but we’ll grab another piece of legislation and punish and harass him.’ That is simply not on as a philosophy of government.

Do not think it is unique to Australia. The United States boast that they cannot detain their citizens without charge being made. That sounds a terrific idea, except they can be detained as a material witness for five years with no charge. By the way, we are a lot better off than the United States; we are a lot better off in some ways than the 28 days in the UK. But that does not mean we cannot look to improve and put safeguards in, for every time you carry legislation on terrorism that restricts people’s civil liberties you must put in the counterbalancing scrutiny and the counterbalancing protections. In that way the community is protected. But the use of secondary legislation is really distressing to me.

Moving onto the question of the immigration minister, it is a long time since I have been an immigration minister, but I understand the pressures that an immigration minister is under. I am yet to be convinced that Mr Andrews committed any illegal acts in regard to this, unless we want to qualify stupidity as an unlawful activity in this country, because he has been quite, quite stupid in some of the statements he has made. That has to be acknowledged.

If he had actually taken action under the 457 visa and cancelled Dr Haneef’s visa long before Dr Haneef had won his freedom by the charges being dropped, I might understand it. But to have the charges dropped and then suddenly cancel his visa within minutes so he could be detained seems to me to be a very rash act. Some of the statements made by Mr Andrews have been totally confusing to me. He first of all said, ‘Oh well, his baby was born a month ago.’ In fact, it was born six days before. That is a fundamental mistake to make, because it does go to motive. Then, of course, Mr Andrews had been to assertiveness classes, because he did not perform too well in the first few press conferences and he went on Insiders and would not answer the question about the four phone calls. It is relevant when someone makes four phone calls to the British police to say, ‘I am returning your call. Do you want information of me?’ That is just ignored, apparently.

Then, of course, we had the extraordinary attack on Mr Rudd and Ms Gillard, demanding they explain his policy—demanding that they come out and give a full explanation of his decision! What does that tell you? What that tells you is: ‘Oh, I intended to wedge you. I failed and I demand to wedge you.’ That is what it basically says. That shows the desperation that was running through this. I do not want to actually allege that political self-interest has been put ahead of national interest here, but on occasions they have been confused—and confused to the disadvantage of many people.

Then Mr Andrews, having been put under the political cosh, seeks advice from Mr David Bennett QC. I have to say for the record that the opposition highly respects the legal opinions of the Solicitor-General. Over the years they have been exceptionally good. But, by the way, we have not seen many of them. Senators here will recall that on many occasions I have got up and asked for legal advice to be tabled only to be lectured by a variety of federal ministers: ‘It is not the government’s practice to table legal advice.’ I have made the point before: the only criterion they use is how far under the political cosh they are. So on this occasion Mr Andrews, having been put under intense pressure, releases the legal advice. But, of course, that will not be a precedent. The government only releases legal advice that is unimpeachable. If there is doubt, qualification, it hides behind executive privilege and does not table it in this chamber. There is no consistency whatsoever from this government when it comes to tabling legal opinions.

But he goes further than that. To get out from under this, he starts publishing restricted and secret material. This parliament extends a privilege to the executive to take charge of restricted and privileged material and trusts them to do so. Every now and then that is to their disadvantage, but not on this occasion. On this occasion Mr Andrews publishes the secret material, much against the wishes of the DPP and the Federal Police, just to save his own political skin. In this game, when that trust is extended to you, you take the lumps; you do not actually reveal secret and restricted information just to protect your own political hide. That is exactly what happened in this particular case.

When I look at all this and at Mr Andrews’s performance, what he ultimately comes down to saying is: ‘I have formed the view that Dr Haneef is a potential terrorist.’ That is the bottom line on this—that Dr Haneef is a potential terrorist. I ask this question: if he is, why did you let him go? Why did you let him go back to India, if he is a potential terrorist? There are ongoing inquiries by the Federal Police and ongoing consideration from the DPP. Why, Mr Andrews, did you let him go home? Well, basically to take the pressure off Mr Andrews and not have him around. That is the reason he went. I want to know what this country is doing letting ‘potential terrorists’ float around the countryside and go overseas. Aren’t we international citizens? Haven’t we got an obligation to the rest of the world? Not if he is a political embarrassment. Send him back home, where he might disappear.

But the most ingenuous argument here today is that this is an operational matter and we should not canvass it. What was Senator Ellison doing in here yesterday in answer to a preprepared question, giving a four-minute justification—going to the details of this case—when it is an operational matter? So you are allowed to comment in this chamber on an operational matter when your political future is at stake. When the government needs to get out and proselytise, you can do it. But if it is not convenient and you get asked this question in here, the minister here, Senator Johnston, would say: ‘This is an operational matter. Don’t comment.’ And he would be absolutely right. But it is not a condition, it is not a prerequisite, for this government to obey. It is happy when necessary to put secret information in the public domain. It is happy to canvass operational matters when it is under the political cosh—when it is politically expedient to do so.

On this occasion the opposition reiterates that there are concerns with regard to the Haneef case. It is not so much to do with the legislation but with the way the law enforcement authorities have handled the case. It does need examination, but there would be no value in it becoming a political circus by being referred to a committee with a government majority that can be manipulated. For the future good of the government, these matters require an independent judicial inquiry so that we can rectify the necessary procedures so that we do not have a repeat of this. You have to understand that the antiterrorism laws have majority support in this country—and we want to make sure they continue to have majority support. We do not want them undermined by poor procedure, we do not want them undermined by sensationalism and, frankly, we do not want to treat people like this.

When Dr Haneef left this country, the immigration minister said, ‘He has run away, he has left the country; that is proof of his guilt.’ What sane person would stay in this country having been detained for 12 days, put in an orange uniform, put in handcuffs and vilified by the press? He knew he had relatives being detained in the UK who were probably far more guilty than he could ever be. He had a newborn daughter in India. Having all that, where would you go? I ask those opposite: wouldn’t you do a runner, too? I think I might have. I do not think I would have said: ‘All is forgiven in Australia. What a great place! I’m going off to the Cox Plate or the Hiskens Steeple next week. It’s just great!’ Of course you would go away and have a break from it! When it comes to cancelling someone’s visa, one of the things you might have taken into account is what sort of hell they had been through in the last 12 days. I think it is proper for a minister to balance that off—that he had in fact gone through a very traumatic experience. Anyway, let us not make conclusions and judgements on this. Let us ask for a judicial inquiry, get a rational approach to this particular issue, and reassemble to debate such a judicial report in this chamber at a later date.

12:32 pm

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Democrats) Share this | | Hansard source

I move:

At the end of the motion, add:

whether there is merit in changing the law relating to the character and conduct provisions used by the Minister for Immigration and Citizenship to cancel Dr Haneef’s visa and the mandatory detention aspects of the Migration Act 1958, along the lines proposed in the following bills which are currently on the Notice Paper in the name of Senator Bartlett:
Migration Legislation Amendment (Provisions Relating to Character and Conduct) Bill 2006, and
Migration Legislation Amendment (Duration of Detention) Bill 2006.

I agree with a lot of the comments that have been made, and I will not repeat many of them. Senator Johnston, as Minister for Justice and Customs, is the junior minister to the Attorney-General. As he is still in the chamber, I would like to reinforce the plea from Senator Ray that the government consider the recommendation from the Parliamentary Joint Committee on Intelligence and Security. Now that Senator Johnston is the minister, I would urge him to use his influence to get that unanimous recommendation adopted because, in effect, it does a lot of what many of us, in our own different ways, have called for today. Let us have a look at that whole bag of antiterrorism laws—whether there be 32 of them or 40. I am sure there are 40, but we will have the argument elsewhere.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Senator Stott Despoja interjecting

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Democrats) Share this | | Hansard source

Anyway, there are a damn lot of them, they are inserted in all sorts of different places, and it would be really good to have a look at them. As Senator Ray said, the joint intelligence committee has made that recommendation on a bipartisan, unanimous basis. I am also duty-bound, by tradition, to note that the joint intelligence committee does not have any representative from the crossbench on it—by law.

Photo of Robert RayRobert Ray (Victoria, Australian Labor Party) Share this | | Hansard source

Your current vote is two per cent.

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Democrats) Share this | | Hansard source

I am talking about the entire crossbench. Whether a Democrat, a Green or, indeed, Mr Andren from the lower house—he is seeking to get into the upper house—I am sure we would all have backed that recommendation, were we on the committee, because it sounds eminently sensible. When committees look at these things and make recommendations and the government still ignores them, those are the sorts of things that help build public suspicion and undermine things.

If this committee inquiry were to go ahead—and we have all heard reasons why it is not appropriate at this time, which I concur with—the core issue is to look at the legislation that undermines it. In my view, the core issue in respect of problematic legislation is in the migration area. I have had legislation before the Senate since last year. The two bills mentioned in my motion are private member’s bills of mine that go to the character provisions in the Migration Act and to one aspect of the detention issues in the Migration Act. The components of that bill that I have put forward would remove the prohibition on people seeking an injunction through the courts to be released from ongoing detention in certain circumstances—a power that did exist for a while and was also quashed by government legislation passed through this Senate.

There has been a lot of understandable criticism of the Minister for Immigration and Citizenship—and we have heard some more criticism put forward very eloquently, as always, by Senator Ray today. But my view, which I have publicly stated a couple of times, is that, whatever the criticisms of Minister Andrews might be, you cannot expect to have a law that gives any minister—whether it be Minister Ruddock, former Minister Vanstone, Minister Andrews or any future minister—such absolute and all-encompassing power to cancel somebody’s visa using the character provisions, on the basis of having a suspicion that they have an association with somebody else, without defining or limiting what ‘association’ means, and then act surprised when they occasionally use that power in a capricious or political way, particularly in an election year. You cannot give open-ended powers and then express surprise when they are used in a way that creates injustice—it is simply inevitable.

The Haneef case has had a lot of attention, for very appropriate reasons, but there have been literally hundreds of people who have been subjected to this part of the Migration Act at great personal cost. Many of them are longstanding members of the Australian community who have been here longer than Dr Haneef. Many of them have been here for decades, and some of them have been here virtually their entire life. They now live the reality of, in effect, having had passed on them by the minister of the day a sentence of permanent exile from what is, in effect, their homeland—permanent exile from their family, their friends and the community, potentially for life. They will never get a visa to get back into Australia. They are having their visas cancelled, for all intents and purposes, without any meaningful opportunity for that decision to be independently reviewed in any meaningful sense of the word.

That is the reality that exists now under law, and it existed, I might say, long before terrorism was put on the agenda. It was put through this place by both major parties back in 1998. It was put through this place at the time because the minister of the day got annoyed because a court had overturned one of his decisions to cancel someone’s visa. He said, ‘I’m not going to have that happening again. We’re going to push for laws that give me almost absolute power.’ And, as we all know, if you give someone absolute power, then inevitably, over time, it will be misused and gross injustices will occur. So my key point is to simply emphasise that in any inquiry that happens—whether it is this one or any other inquiry into anything to do with the Haneef matter—in my view, as a matter of absolute necessity, we need to look at the underlying laws, not just the actions of particular people, whether it is the minister, the police or anybody else.

To me, the most extreme breaches of basic freedoms are not under our antiterror laws, as problematic as some of them might be; they are under our Migration Act, in both the character provisions and the detention provisions. Let us not forget that, even under our antiterror laws, when Dr Haneef was a terror suspect and had charges laid against him, he still had the right to apply for bail through a court and have that considered by a magistrate. That is what occurred, of course. I was in the court in Brisbane when that decision was handed down. It was clearly a reasonable judgement, having weighed up all the evidence. His visa was cancelled. Even when he had no charges against him and there was no suspicion of any credible sense of being any sort of security or safety risk to the community, he was suddenly locked up, potentially indefinitely, and had no right to go to a court. That is perverse and something that we need to reconsider. That is still the reality of mandatory detention.

I will not comment specifically on the case before the court, although I am sure that the judge that is hearing it would not be swayed if I did comment at length on the case before the court at the moment. Nonetheless I shall not do so, beyond noting the reports in the papers today about Justice Spender’s own comments where he queried how broad the definition of ‘association’ could be and raised the situation where people, who are absolutely and totally innocent, nonetheless—under the literal meaning of the word ‘association’—can be deemed to have an association with someone else. Obviously you have an association with your relative, whether you like it or not. You have an association as a taxi driver by virtue of picking someone up. Those are the sorts of things that were talked about in the debate in this place back in 1998. It is just open-ended. We will see the decision that the judge comes down with.

As people would know, I was quite active in trying to ensure fair process for Dr Haneef. I have spoken to his relatives and wife. Clearly, I am associated with them. Under the broadest interpretation of the provision in the Migration Act, that would pull me under the character test, except for the fact that, of course, I am an Australian citizen, so I cannot have my visa cancelled. But that shows just how broad the definition could be and how much of an inhibition can be applied to the actions of anybody who is a noncitizen in this country. Let me remind the Senate that that includes literally hundreds of thousands of people. I believe there are over a million people in this country who are permanent residents and eligible to be citizens but have not taken out citizenship for all sorts of reasons. Many of those residents have been here for years and years. All of them could potentially, at any time, come under the totally open-ended provision regarding association.

Hundreds of thousands of others here each year, such as Dr Haneef, help our country in meeting skills shortages and filling jobs. They are all at risk of these unfair laws, and that is why they need to be examined—not just because they might end up being subjected to unfairness but also because, in the interests of Australia as a nation and of Australian citizens, it is certainly not in our interests to have people living amongst us who are fearful about who they talk to, who they are seen to associate with and what sorts of ways they might fall foul of extreme and unfair laws. That does not do us as a society any good; it does not do our economy, our community or anything any good. I believe it is very important that we re-examine those provisions in the Migration Act. It certainly will not happen through this particular motion, but I would continue to urge the Senate to look for opportunities to do that. I think both the character provisions and the detention provisions of our Migration Act need reform. They are totally open-ended and are therefore able to be applied in extremely unjust cases.

I make a final point with regard to this, because this is the main opportunity we have had to debate the Haneef issue. According to reports in the papers today, we have had yet another mistake in what was put to the courts yesterday in the hearing. It was about the notorious SIM card of Dr Haneef. There has been confusion over when it actually expired. Information was put to the court that it had expired towards the time of the recent attacks. It was clarified that, indeed, Dr Haneef’s notorious SIM card had actually expired back in August last year—some 10 months before the recent terrorist activities—and was then renewed by somebody else. The fact that that piece of information about something that seemed so critical in this—the SIM card—was still not right when it appeared before a court, from what was put forward by government or Commonwealth officials, really does have to be cause for concern.

I would like to make another point. It links to the other big debate we have been having in this chamber this week, and we will be having it again next week. There is all the talk about putting the situation for Indigenous people front and centre and trying to find extra police from all around the country—10 police from each state being lent to assist the situation in the Northern Territory. I am certainly not criticising the benefits of having more police to assist Indigenous communities, as long as those police are appropriately trained.

From various reports that I have seen on the Haneef case, there have been at least 300 police. One report I saw said there have been 500. I find that hard to believe, but obviously hundreds of Federal Police were involved in investigating the Haneef case. If we have hundreds of police looking at this one person and desperately trying to find something more than a long-expired SIM card to pin on him—and, reportedly, an investigation is going to continue for as long as it takes to find something on this guy—where are our priorities in the use of police? If we are really saying that there is a genuine situation in the Northern Territory that needs urgent strong support and we need more police there—and I do not dispute that, as long as they are appropriately trained and doing appropriate things—perhaps a few of those hundreds from the federal level could be added to assisting Indigenous people in the Territory, and maybe even elsewhere as well where they are calling for that sort of extra help.

12:45 pm

Photo of Linda KirkLinda Kirk (SA, Australian Labor Party) Share this | | Hansard source

I rise this afternoon to speak briefly in relation to this matter and to support the comments of my Labor colleagues. Unfortunately, we are unable to support the motion of Senator Nettle to have the list of matters referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry. The reason for this is that we believe, as I will outline, that this is a matter that has an appropriate time and place. However, it is not something that ought to be undertaken by the Senate committee.

Extraordinary antiterrorism powers were exercised during the recent case concerning Dr Haneef. These are laws that have been enacted through the parliament over the last five or six years. In fact, it is the case that Australia now has 44 pieces of antiterror legislation that have been enacted since 2001, and there is no question that these laws require maintenance and continual review. The case concerning Dr Haneef was really the first test case in Australia involving the new antiterrorism laws, and Labor has said, quite openly, that there ought to be a judicial inquiry concerning the operation of these laws in relation to Dr Haneef. However, now is not the time for review and the Senate is not the place for that review to take place.

I think it is important to distinguish two matters here: firstly, the matters concerning Dr Haneef, his detention, questioning, being taken into custody, and subsequent release from custody; and, secondly, the wider issue of antiterrorism legislation, more generally, and the need for an ongoing review of that legislation. For the moment, I will just concentrate on the matters that are raised in Senator Nettle’s motion.

As Senator Ludwig said before me, Labor considers that now is not the time for such an inquiry to take place by the Senate. It is, of course, completely inappropriate for us, as legislators, to be involved in reviewing the matter relating to Dr Haneef when there is a criminal investigation currently afoot. As we know, the Australian Federal Police is continuing its investigation in relation to Dr Haneef and, whilst that is occurring, it is not appropriate for the Senate or any of its committees to undertake a concurrent investigation. In addition, the matter relating to the cancellation of Dr Haneef’s visa is also the subject of court proceedings as we speak. Dr Haneef’s legal counsel, of course, have challenged the decision of Minister Andrews to cancel Dr Haneef’s visa and that matter is being heard in the courts currently. So there are two very good reasons as to why the Senate or one of its committees should not be undertaking an inquiry into this matter at this point in time.

Moving on to where such an inquiry ought to take place, Senator Nettle has moved, as I said, that such an inquiry take place by Senate inquiry. Whilst Labor believe that there ought to be an inquiry in relation to the matters surrounding the decisions made by various individuals, ministers and Commonwealth agencies in relation to Dr Haneef, we consider that such an inquiry ought to be conducted by a judicial officer and that the nature of the inquiry should be an independent one. We have said that an appropriate person to chair this judicial inquiry would be, for example, a retired judge of one of the supreme courts or a retired High Court judge. We have said that such an inquiry could canvass the main issues in the case and, in particular, the interaction between the criminal law and migration law, and whether they may be harmonised in some way in order to lift some of the pressure off our law enforcement agencies. But we emphasise that such an inquiry should not take place until the investigation that I referred to earlier by the AFP has been completed.

Moving now on to the broader issue of the review of antiterrorism laws, as other speakers have emphasised, there have in fact been numerous reviews of the antiterrorism laws that currently exist in Australia. One of the primary reviews that took place was the Sheller review that, as I understand, tabled its report in parliament in June 2006. This was a public and independent review. Chaired by Sheller, it reviewed the 2002 package of security legislation, plus the Criminal Code Amendment (Terrorism) Bill 2003. The review was required to be undertaken as soon as practicable after the third anniversary of the commencement of the Security Legislation Amendment (Terrorism) Act and to report to the Attorney-General and to the Parliamentary Joint Committee on ASIO, ASIS and DSD within six months of the review commencing. As I said, the Sheller report, which is a comprehensive review of this legislation, was tabled in the parliament in June 2006.

In the context of additional reviews, it is interesting to note that the Sheller report did recommend that the government establish a legislative based timetable for continuing review of the security legislation by an independent body, such as the Security Legislation Review Committee, to take place within the next three years. The report went on to say:

If an independent reviewer … has been appointed, the review to be commissioned by the Council of Australian Governments (COAG) in late 2010, could be expanded in its scope to include all of Part 5.3 of the Criminal Code.

That recommendation was made by the Sheller review, and it is a matter that the government should consider implementing.

I was interested in and agree with the comments made by Senator Ray earlier this afternoon in which he indicated that in the United Kingdom there is an annual, independently conducted review of antiterrorism laws. He suggested—and I think it is a very good suggestion—that the Attorney-General and the Minister for Justice and Customs look very carefully at what happens in that jurisdiction because we would be wise to adopt a similar approach. Certainly the Dr Haneef matter has indicated that there is need for constant review and scrutiny of our existing laws, particularly in this context, if there is going to be ongoing public confidence in the antiterrorism laws. One of the best ways to ensure that is to have a constant review of the legislation, ideally by an independent body.

Unfortunately, we are unable to support Senator Nettle’s motion. We support the intention behind it, but, in Labor’s view, a Senate inquiry is not the way that we ought to proceed in relation to this matter.

12:54 pm

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I thank other senators for their contributions to this debate. It is not my intention to have a Senate inquiry into something that is before the courts. A number of people have raised that issue, and I would be very happy to extend the reporting date to ensure that that did not occur. As Senator Ludwig outlined in his contribution, it is difficult to set time lines because there is an election coming. The Labor Party indicated they did not support Senator Stott Despoja’s motion because the time line was too long and indicated they were not going to support my motion because the time line was too short. It is a difficult thing to do. I acknowledge the comments that people have made about the importance and possibility of having a judicial inquiry. I would be quite supportive of a judicial inquiry occurring in relation to this matter. But I think we have the opportunity—

Opposition Senators:

Opposition senators interjecting

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

I am sorry, Senator Nettle, but you have provoked a controversy on my left. I call senators to order.

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

As I was saying, I would be quite happy for a judicial inquiry to occur. I said that in my opening remarks in relation to this matter. But we do not have the ability to make a judicial inquiry occur; only the government has the ability to make a judicial inquiry occur. We do have the ability to make a Senate inquiry occur, and that is why I am moving this motion in the Senate. I think we have heard from almost every speaker that there should be an inquiry into this matter. People have slightly different views about when and how that should occur, but we have heard that this is a matter that needs to be further looked into. That is what I am proposing—that we have an inquiry. It would be great if the government proposed a judicial inquiry, but the Prime Minister has made it quite clear that it is not the government’s intention to do that. So this is our opportunity, and that is why I am proceeding with this motion. It has been good to hear everybody’s views on this issue and to hear general support for an inquiry from the majority of speakers. This is the opportunity, and that is why I am making this proposal to the Senate. I hope to see it supported.

The Acting Deputy President:

The question is that the amendment moved by Senator Bartlett be agreed to.

Question negatived.

Original question put:

That the motion (Senator Nettle’s) be agreed to.