A real turd but …

Kevin Andrews is a sanctimonious, god-bothering twerp who acted as John Howard’s cypher in torpedoing the Northern Territory’s ground-breaking (if slightly flawed) euthanasia legislation some years ago. In fact, he’s one of the few politicians on either side whom I instinctively dislike.

But I must say, in light of the just-released information about Dr Haneef’s chatroom conversation with his brother the day before he tried to leave Australia and was arrested, that a lot of people owe Andrews an apology. AFP errors in relation to where Haneef’s SIM card was found; whether he flatted with cousins in the UK; and whether he had given an explanation for his attempted departure from Australia; certainly together justified the dropping of charges against him (as did the more central factor of whether it could be proved that he knew about the terrorist propensities of his relations when he handed over the SIM card). But the contents of the chatroom conversation (if true) are suspicious as all hell, and in themselves justify both the refusal to reinstate his visa and keeping him under the closest surveillance.

Indeed, even if the Federal Court quashes Andrews’ original decision to cancel Haneef’s visa (as it may well do, because it was clearly based on several jurisdictional errors, namely the taking into account of the irrelevant/incorrect information outlined above), in my view Andrews (or an acting Immigration Minister whose decision cannot so easily be legally impugned) should reconsider the matter and again cancel Haneef’s visa under section 501. It is almost impossible to imagine an innocent explanation for the reported chatroom conversation (assuming it occurred as alleged).

This should be an object lesson to all those who rushed to judgment without being in possession of all the facts.

On the other hand, it’s difficult to see a principled justification for the AFP and DPP’s withholding these allegations from Haneef and his lawyers. No doubt it falls legally under the classification of “protected information” that can lawfully be withheld under existing anti-terrorism legislation. But that simply underlines the inadequate protections in that legislation. Can it really be convincingly argued that any genuinely secret sources of intelligence would have been compromised by disclosing this information before now? You don’t need a PhD to realise that authorities would certainly be monitoring all sources of communication (including email, mobile phones and Internet chatrooms) that might possibly be used by any terrorism suspect as soon as the identity of that suspect is known. Unless both Haneef and his lawyers were complete fools, they would already have contemplated the probability that the authorities were aware of all communications occurring within a day or two of his arrest. In those circumstances, what was gained by withholding the information and denying him the opportunity to advance any explanation he might have had for the conversation? If intelligence sources would not have been compromised (as I think is clearly the case), then basic principles of natural justice should have required that the substance of these allegations be disclosed to him before his visa was cancelled. 1

The immediate political consequences of these revelations are unclear. Rudd has backed the Howard government’s actions to date, and still hasn’t backed away from that stance, despite having backtracked to an extent yesterday. Presumably he was briefed on the protected information some of which has now been revealed. That makes his refusal to criticise the government easier to comprehend in principled terms rather than just as “wedge avoidance”. Nevertheless, these revelations may reinforce for the average punter the fact that Islamic terrorism is a real threat for Australia, contrary to the glib assumptions of many on the left. That could conceivably reinforce an already detectable poll trend back to the Coalition.

  1. Updateit now appears that the chatroom information WAS disclosed to the bail magistrate, so Haneef was not denied natural justice in this respect. In addition, I should also note that the decision to cancel Haneef’s visa was made under section 501(3) of the Migration Act, which doesn’t require natural justice to be afforded prior to a cancellation decision, but requires an opportunity to be heard after the event ~ KP []

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ken Lovell
14 years ago

‘It is almost impossible to imagine an innocent explanation for the reported chatroom conversation (assuming it occurred as alleged).’

(1) I can imagine an innocent explanation without the slightest difficulty: Haneef and his brother had a very realistic expectation of the kind of shit that would hit the fan once people started to build a circumstantial case against him. Exactly as subsequently happened. So they sensibly decided the best course of action was for Haneef to hightail it for home until they could see how things developed. I’ve never had a cousin try to blow up an airport but if I did and there was circumstantial evidence that I might have known about it in advance, I suspect I might be inclined to panic just a little bit too.

(2) Nobody knows how the conversation occurred because we haven’t been told. It’s a ‘computer room conversation’, whatever that is. It reads like an awkward translation from another language and we know nothing about the context. If someone got hold of my IM conversations they could cherry pick bits to make out I’m guilty of just about anything, and I write in English (sort of).

If and when the British (where the crime, if any, actually occurred) and Indian (unless someone thinks the Indian government is now into harbouring Muslim terrorists) governments show an interest in questioning and/or charging Haneef I’ll believe he might be guilty of something apart from having unfortunate relatives. Until then I’ll believe this is all political grandstanding.

And I’ve yet to hear a convincing explanation of why we didn’t simply detain him until the Brits decided whether they wanted to extradite him. They’re the ones who had loonies trying to blow things up. If they didn’t want to charge him, WTF did it have to do with us?

melaleuca
14 years ago

Too true, Ken. I’ve been trying to get this message thru to the censorious neo-Stalinists over at Larva Prod. Harry Clarke is one of the few bloggers who has got this one right.

David Rubie
David Rubie
14 years ago

Absolutely, utterly, dead wrong.

There is a perfectly innocent explanation for Haneef’s behaviour: he wanted to avoid getting caught up in a justice system that could detain him indefinitely without being charged. If I was in a foreign country and one of my relatives did something equally as stupid as his, I’d be just as frightened. It turns out, he was right to be frightened, as he *did* get caught up in a politicised incarceration.

Andrews on Lateline this evening was pathetic. Same tired old scripted lines, no evidence other than a very biased and opportunistic reading of a chat room transcript. The whole episode is shameful. Andrews ought to be sacked, but Howard won’t do it because there is still advantage in having darkies on the TV with blood dripping from their fangs. The only scary participant is Andrews.

cs
cs
14 years ago

I wouldn’t make a judgement on excerpts. Surely you have to see the context. As any historian knows, you can make up almost anything if you are carefully selective. You are giving the authorities the benefit of the doubt. Do they warrant confidence? There is a case for independent review.

Rudd has no choice but to be responsible, given he doesn’t have the primary reading, or have to make the call. He can’t indulge himself like normal folk, who have found the whole thing distracting, an apparent farce unfolding live. Will Haneef go down in Indian history as a celebrated citizen, liberated from a pernicious Australian election conspiracy, or will a darker side yet appear to fully substantiate the Howard government’s action-packed adventure?

I keep thinking the evidence will be like kids overboard. Labels will have been dropped off, dates changed. Don’t tell me they have done a deadly double-think, and played straight? You can’t trust ’em, I tell ya.

James Farrell
James Farrell
14 years ago

A question I’ve put twice, hoping one of our laws can answer it, is whether there is any reason why all of this information, plus Haneef’s explanation, wouldn’t have been available to the bail magistrate. If Ken P is right that chat room correspondence justifies keeping him under the closest surveillance, how could he not have been a bail risk? Maybe I’ve got this worng, but doesn’t bail depend on the nature of the charges and the implied danger to the community of letting the accused remain at large, rather than on the strength of the prosecution case at the time charges are laid?

Jc
Jc
14 years ago

Ken

Great…. terrific bloody post. The best on the web.

KenL

Not for nothing, but it was only a few hours after the first attempted bomb attack in London and a few hours before the second attack you were out at Road To Insanity ( Ok Surfdom) implying the fist bomb attempt was a stage managed act by the new UK PM to garner public acceptance for the Iraqi war and continued support for Bush. The timing-a few hours before before the 2nd attempt was impressive. It sounded like a bit of stretch to me but then again the site supports that sort of thing and who am I to judge.

Have you eaten a few kilos of humble pie/crow yet and apologized. If you haven’t done so, you reckon you ought to be speculating on the meaning of those chatroom discussions. This isn’t beginning of another one of those conspiracy theories you and the Aussie Bobster are flying over there, is it?

Just asking KenL. Not meant to place you in any corner here.

observa
observa
14 years ago

“AFP errors in relation to where Haneefs SIM card was found;”
are now explained here
http://www.news.com.au/story/0,23599,22167403-23109,00.html
Oops, sorry say the UK Police. Now where has that AFP are Keystone Cops bloke got to?

James Farrell
James Farrell
14 years ago

…hoping one of our lawyers can answer it…, I mean.

Mark Bahnisch
14 years ago

The evidence released by Andrews is perfectly susceptible of a benign interpretation, and in fact theres nothing in it but suspicion to justify any belief that he did pose a danger to this countrys citizens. It seems that the most obvious interpretation is that he and his family were aware that he could get caught up in a web by virtue of the SIM card, and that he might have found it prudent to leave the country. It doesnt show that he was associated in a criminal sense with his cousins, just that he was aware of the sort of net that was likely to be cast. Rightly, as it turned out. And it doesnt exclude a primary reason for his departure being to see his daughter.

The Act specifically denies natural justice, and as pointed out by the Solicitor-General, doesnt need a criminal association or knowledge of criminality to be made out, just an association.

Haneef it seems is guilty of having relatives.

We dont need to paint his behaviour either as perfectly rational (the whole thing about whether or not he applied for leave or not implies indecision to me) and nor do we have to suggest hes some sort of angel from heaven. What we can say on the basis of the information the public now have is that theres very little basis for the governments attempt to smear him and destroy his character and livelihood.

I dont believe that there is an answer from the government and its supporters yet to this question – why was it necessary for Andrews to cancel his visa when as a condition of bail he would have had to surrender his passport? And he could still be watched by the AFP. If indeed there was a good faith belief that he had terrorist associations, such a course (which is routine for suspects on bail) would be a far more fruitful way of bringing more evidence to light than incarcerating him in Villawood, which was Andrews’ intention.

Please enlighten me.

Jc
Jc
14 years ago

Mark

Do you know the exact contents of the chatroom stuff?

melaleuca
14 years ago

Mark Bahnish says:

“What we can say on the basis of the information the public now have is that theres very little basis for the governments attempt to smear him and destroy his character and livelihood.”

Don’t be such a monkey’s arse. Haneef is now a hero in India. His reputation is only damaged in a country three thousand kilometres away that is the last stop to the South Pole.

Haneef can now rake in money from television, print media and there might even be a book in it. I’m sure he cried all the way to the bank with his Sixty Minutes cheque.

For God’s sake Mark, take some valium but be sure to spare some for TigTog and the other LP luvvies.

Frank Calabrese
Frank Calabrese
14 years ago

Here is Andrew’s full statement of the so-called “Chatroom Conversation”

http://www.smh.com.au/pdf/haneefpdf.pdf

observa
observa
14 years ago

You’d have to say as a result of this news, the AFP were perfectly correct in putting the information received from UK police before the Court, in order to detain and investigate Haneef further, in light of the fact that time was of the essence for any investigation to uncover any more potential villains and their plans. As it turned out that information proved to be incorrect, but not to use it as part of proceedings to justify detaining Haneef longer at the time, would have been negligent. The case for a conspiracy by the AFP and the Govt has now completely unravelled.

Jc
Jc
14 years ago

thanks Frank.

Well if what Andrews is saying is true… case closed. Or rather Haneef has a few questions to answer and maybe 60 Mins ought to be stopping the cheque in case they get accused of financially supporting potential terror threats.

Mark Bahnisch
14 years ago

Do you know the exact contents of the chatroom stuff?

What I heard Andrews read out in the extended vision on the 7 30 Report, Joe. His defence have pointed out that the chatroom conversations were put to him by the Federal Police but Andrews hasn’t released the transcript of that interview. Therefore, the one important datum we don’t know is how Haneef himself explained those conversations.

So, contrary to what Ken’s suggesting, anyone relying on Andrews’ stuff alone is jumping to conclusions without full possession of the facts.

If Andrews has a good faith belief that he’s a terrorist, I’d also be interested in how our country’s security is served by now allowing him to return home where presumably we won’t be able to keep track of him if he does do something.

As to Melaleuca and his comments about luvvies, if you could refrain from calling others’ opinions stupid and people the “most obtuse and hysterical boutique leftist” I’d be quite happy to entertain your contribution to a civilised discussion of the issue. But the way in which you, and others like Harry Clarke with his claims about “deranged leftists” both impugn everyone who doesn’t agree with you and your slavish trust in whatever the government line is and the way that you constantly harp on about “the left” suggests that to many who claim to be deeply concerned about national security their real level of interest only rises when they think they can score cheap political points domestically.

Jc
Jc
14 years ago

So, contrary to what Kens suggesting, anyone relying on Andrews stuff alone is jumping to conclusions without full possession of the facts.

True, but I really think Andrews would be in serious trouble if he is lying now. That’s a low delta I think. I couldn’t imagine anything dumber.

————————

If Andrews has a good faith belief that hes a terrorist, Id also be interested in how our countrys security is served by now allowing him to return home where presumably we wont be able to keep track of him if he does do something.

True. great point.

My guess…. I not a lawyer…. but it would be too difficult to prove in a court. The legal guys would know better. Dunno.

SJ
SJ
14 years ago

I’ll re-post here my comment on LP:

Andrews was just on Lateline.

His closing statement was something like: The subsequent information, some of which I released today, it wasnt information I relied on, only served to confirm my suspicions.

I find this quite telling. Its very similar to Andrews claim that Haneefs sudden departure after Andrews handed him his passport and a plane ticket only heightens my suspicions.

Another thing Andrews found suspicious was Haneefs decision to start holding press conferences in India, but not hold any in Australia. This is quite ridiculous. It was my understanding that Andrews department was doing its best to prevent contact between Haneef and the press, not just in Australia, but also even on the plane to India, by upgrading Haneef at the last minute and moving all of the journalists to the upper deck of the plane, well away from Haneef.

My best guess is that there never was any secret information. Andrews is doing his best to manufacture justifications after the fact. The more he does it, though, the sillier he looks.

melaleuca
14 years ago

Don’t be dishonest, Mark. I myself identify with the Left. It is the “boutique left” that raises my ire. You happily entertain comments from Leftists that call Howard “ratty”, Noel Pearson “Uncle Tom the Coconut” and so on.

Get off that soap box and admit you can’t cope with criticism.

Andrews only needed reasonable suspicion to revoke Haneef’s visa. In spite of the hysterical wailing from you, Tig Tog and some other LP contributors, Andrews clearly acted with prudence and proprietary.

Mark Bahnisch
14 years ago

I don’t think Andrews is lying. He’s being very selective about what he’s releasing. A lot of the AFP interview transcripts are already in the public domain, and it would be reasonable to allow people to read what Haneef had to say in response to the evidence of the chat room discussion put to him.

I do think Andrews (and Ken) are jumping to conclusions which may well be unwarranted on the basis of what has been released.

It may be that Andrews still thinks he’s probably a terrorist. I suspect he’s deluding himself, but that’s not the same thing as lying.

It’s a worry, anyway, when all we have for all of this is the untrained view of a Minister. I can’t see how we’d be any less safe if there was some legal input into these decisions, rather than just executive fiat.

I really am interested in whether anyone can let me know why locking the guy up in Villawood would have been preferable to keeping him under surveillance while on bail and thus possibly gathering harder evidence is the best way to go.

I really don’t think anything in this episode should give anyone any confidence about how this mob of clowns would be able to act effectively if there were a credible threat in Australia of terrorism. We might be being protected more by luck and distance and obscurity than anything else.

James Farrell
James Farrell
14 years ago

I doubt he even knows what ‘luvvies’ means, Mark. Don’t let it get to you.

Mark Bahnisch
14 years ago

Andrews clearly acted with prudence and proprietary.

How about an argument or two, Mel, rather than political bluster and unsubstantiated assertion?

J F Beck
14 years ago

Mark Bahnisch writes: “So, contrary to what Kens suggesting, anyone relying on Andrews stuff alone is jumping to conclusions without full possession of the facts.”

How many near-hysterical anti-government Haneef posts were written by LP bloggers operating “without full possession of the facts”?

Mark Bahnisch
14 years ago

Ken, I’d make three points in response:

(1) the point I’ve made repeatedly – why cancel his visa then? There was no danger of him fleeing. His passport had been confiscated. What was the urgency? Would there not have been more gain in surveillance while he was on bail?

(2) The key thing with the record of interview is that we have the conversation (possibly translated from Hindi – do we know that?) but not Haneef’s explanation. A large number of conversations which people don’t believe are being monitored lack context, obviously. Such conversations require interpretation – that’s why we have intelligence officers. Andrews is just a pollie – why is his judgement the sole judgement privileged by the Act?

(3) If he believed that he was likely to get caught up in the investigation by virtue of the SIM card, it’s entirely rational to believe that he and his family were frightened of what might occur to him. Rightly, as I said.

SJ
SJ
14 years ago

Ken Says: “Andrews claimed on Lateline just now that the chatroom transcript released was substantially the whole of the conversation. Since he must know that hed be unmasked if that claim is false, we can reasonably conclude that it is true. Thus it isnt selective.”

Ken, given the history of this case, and the way everything so far has collapsed after only a few days, that’s a remarkably brave assertion.

Mark Bahnisch
14 years ago

I don’t know, J F Beck, perhaps you’ve counted them and put up a post on your not at all hysterical blog?

Why is it impossible for those supporting Andrews on this to resist taking pot shots at lefties? Are you really concerned about discussing the best way to ensure that we’re protected against terrorists or about scoring points? No need to answer. The question is rhetorical.

melaleuca
14 years ago

Mark Bahnisch says:

“It may be that Andrews still thinks hes probably a terrorist. I suspect hes deluding himself, but thats not the same thing as lying.”

Again you make a fool of yourself. All the minister needed was “reasonable suspicion” to revoke Haneef’s visa. The Solicitor General’s advisory letter kindly supplied to us by Frank furnishes all the grounds necessary for reasonable suspicion to exist.

Your calls for the release of Haneef’s interview transcripts is a mere red herring. It is irrelevant in the context of the substantive evidence contained in the Solicitor General’s letter.

James Farrell
James Farrell
14 years ago

Ken, you directed part of your last response to me, but it had nothing to do with what I was asking.

Mark Bahnisch
14 years ago

The Solicitor-General’s advice is advice to the Minister about whether he acted within the law. It doesn’t contain “substantive evidence” and indeed a lot of it is devoted to establishing that the word “association” in the Act doesn’t need to encompass either “criminal association” or knowledge of criminality. The advice extensively reviews the case law on this. That basically says to the Minister that he acted within his powers, but it doesn’t prove anything about Haneef. As Andrew Bartlett’s suggested, it’s the Act here that’s at fault.

I’d invite you to either re-read the advice without preconceptions, or reconsider your propensity to call others fools.

J F Beck
14 years ago

MB, rather than speculate I’ve written not a single word on Dr Haneef.I’ve been biding my time while the situation developed.

Oh and by the way, I note that the latest LP post doesn’t link back to any of the more embarrassing LP posts. You know, like how the AFP are incompetent for massively fucking up the SIM card evidence. It’s you guys who have the splainin’ to do.

Mark Bahnisch
14 years ago

I can explain, J F Beck. Media reports were incorrect.

Just to clarify things for Melaleuca. The Solicitor-General is not forming a judgement on either the rightness of the Minister’s actions or the worth of the evidence. He is advising on whether the Minister could revoke the visa on the basis of the evidence given the powers the Minister has under the Act. That’s the significance of the lengthy discussion of the definition of “association”. There was no evidence of criminal association or knowledge of criminal acts, but the Minister could nevertheless legally form the view that Haneef was of “bad character”.

That should be of concern.

It doesn’t suggest anything as to whether Haneef was a terrorist or knew of the acts in advance, though.

Jc
Jc
14 years ago

2) Its at least possible that the second interview occurred too late for references to it to be included in the affidavit material put before the bail magistrate. However, as I said, I dont know and I agree that its a question that should be pursued and answered by the DPP and/or AFP.

Ken, could the government have gone back again to court if the new evidence came in after the first case? Are there any restrcitions on this, such as double jeapody etc or technicl legal points of law?

melaleuca
14 years ago

Bahnisch says:

“It doesnt contain substantive evidence and indeed a lot of it is devoted to establishing that the word association in the Act doesnt need to encompass either criminal association or knowledge of criminality.”

I did not say Andrews acted on the letter itself, but the letter details the evidence that made Andrews’ decision correct. A Labor Government would have made exactly the same decision and you know it. You are engaged in nothing more than partisan point scoring.

I hope like hell Howard loses the next election but I find this carry on over Haneef absurdly overblown.

Mark Bahnisch
14 years ago

So you’re happy that the Minister can make a decision based on evidence which basically boils down to the fact that Haneef had relatives who were dodgy, and other relatives who were advising him not to get caught up in the shitstorm that hit him?

That’s my interpretation, and not Andrews’ obviously, but there was zero evidence of criminality or criminal association or foreknowledge of the acts. None. Zip.

And you’re happy basically to leave such enormous executive discretion in the hands of a Minister (who as Ken correctly points out is a goose)?

Well, good on you for fighting the good fight against terrorism but forgive me if I don’t want to sacrifice the rule of law and natural justice along with it, Mel.

And I don’t accept that a Labor minister would have done the same. As I’ve argued repeatedly (with no response from Andrews’ defenders), it would actually make more sense to let him out on bail and keep him under surveillance. His passport had been confiscated. He wasn’t going anywhere.

Mark Bahnisch
14 years ago

Sorry, #36 was addressed to Melaleuca. Crossed with JC’s comment.

Mark Bahnisch
14 years ago

I mean Ken’s comment. Bed time obviously!

Jc
Jc
14 years ago

Thanks Ken

Because this makes the thing a little curiouser .

It was Mark B or Sj who said brought a good point that needs to be examined that in light of the new information which why did they let the guy go and not charge him again?

cam
cam
14 years ago

Everyone commenting here appears to have accepted that migration law and anti-terrorism law are one and the same.

There still remains the issue where executive action can gazump judicial outcomes through the Migration Act. We have the police and all sorts of investigative arms to deal with issues like Haneef, even in areas like on-going surveillance. We don’t need the use of interpretive migration law for it.

One of the interesting things of this whole episode is that since Andrews used his discretion through the Migration Act and created an exception the trial has become political.

Rather than being fought in the private space of the court room, guilt is being determined in the public space. There have been leaks galore into the media, appearances on TV etc. This is a continuation of that process as has all the postings on this issue in the blogs.

Mark Bahnisch
14 years ago

Nor is there any reason why it should have been asked, or why Bennett’s value/merits judgment as a lawyer should be preferred to that of the responsible Minister, whose job it is to make such decisions under the Act – and whose job it has for many years been to make such decisions including under the legislation in force under the Hawke and Keating governments.

It was problematic under them, as well, as those who’ve pointed that out with regard to our friend the Sheik have observed many times. I think the original intent was to allow the Minister to act if bureaucratic procedures had gone wrong, but it appears to have become a routine since Ruddock’s tenure as Minister.

But my understanding, Ken, from what Andrew Bartlett was saying was that the Act had been amended to exclude natural justice and to weaken the evidentiary grounds recently as part of anti-terrorism measures? Is that correct?

Robert
Robert
14 years ago

A response from Russo here. Russo aggressively refuted the Andrews renewed claim on a faulty line to SBS News 9.30, (can’t find it online), and from these it would be expected we’ll hear more again from Russo re context in the next day or so.

Enemy Combatant
Enemy Combatant
14 years ago

Were Dr. Haneef’s alleged chat-room conversations with his brother in Hindi, as was so much of Dr. H’s other communications with his family? If so, who translated it?
Andrews performed his set piece at sundown from behind a lectern and an Oz flag lapel badge, and in front of three very large semi-furled Australian flags. He emphasized that his actions were in the National Interest. Not that patriotism has ever been the last refuge of politicians like Andrews.

The Minister from Menzies is either relying on a translation, from which he has cherry picked, and can’t possibly disclose fully for alleged reasons of National Secutity, or, perhaps he’s lying in an attempt to frighten the living daylights out of the gullible in attempt to harvest their fearful votes come the election.

Ken, not all of us reflexly accept the word of a bloke like Andrews. Hope you don’t mind if I hold off on an apology for a little while longer.

Tim
Tim
14 years ago

Just a small clarification. Ken says, in regard to Krudd: “Presumably he was briefed on the protected information some of which has now been revealed.” Rudd said the other day that they/he hadn’t been told the protected information. That is, told there was some, but not given its content.

harry clarke
14 years ago

Ken, You certainly show a lot more honesty Ken than others in the blogosphere. it is appreciated.

harry clarke
14 years ago

But, by the way of a hypothetical, would you refer to Andrews as a ‘turd’ or a ‘god-bothering twerp’ if he was a Jew or a Muslim?