The Indian Government’s expression of concern regarding the detention of Dr. Mohammed Haneef is welcome, as is the consular assistance extended to Dr. Haneef by the Indian High Commission in Canberra. Consular assistance is the right of any individual away from his or her home country, and India should be extending such assistance more proactively to its nationals in other countries, chiefly in the Gulf countries where thousands of Indians live and work. 

The Australian government’s handling of the case, on the other hand, has not only been disgraceful but also consistent with its earlier disregard for the rights of non-citizens. 

‘Thin case’ 

The case against Dr. Haneef concerns his alleged support for the failed terror attack in the United Kingdom on 30 June 2007. Dr. Haneef is said to have given his mobile phone SIM card to one of his relatives a year ago before leaving the UK for Australia. Australian prosecutors have alleged that the same SIM card was found in the car used in the attempted terror attack at Glasgow airport. However, it appears that factual allegation is incorrect, and that the SIM card was actually found a number of hours later in the possession of Dr. Haneef’s relative rather than at the crime scene. 

These developments further buttress the recent assessment by a prominent Australian civil liberties lawyer that Australian prosecutors have at best a “a thin-looking case that will depend on showing that Haneef had reason to think one year ago that the SIM card would be used by a terrorist organisation.” Queensland Premier Peter Beattie more succinctly called the case against Dr. Haneef “sloppy”. 

Improvising a rationale for Dr. Haneef’s detention 

On 2 July 2007, two days after the attacks in the UK, Dr. Haneef was arrested at Brisbane airport as he was preparing to fly to India. He spent 12 days in detention, waiting to be interrogated by police. It was only on 14 July 2007 that he was charged under Australia’s Anti-Terrorism Act for recklessly providing support (in the form of the elusive SIM card) to a terrorist organisation. 

On 16 July 2007, he was produced before a magistrate who granted him bail on the grounds that the authorities had failed to show a clear link between him and the UK terror plot. 

However, almost immediately, Australian Immigration Minister Kevin Andrews revoked Dr. Haneef’s temporary skills visa on the grounds that the doctor had failed the ‘character test’ required under Australia’s Migration Act, and ordered his detention until the case against him was pending, thus effectively overturning the court order granting bail. 

Retreat from rights: Detentions of non-citizens 

Dr. Haneef’s case is only the latest example of a consistent deterioration in Australia’s human rights record with respect to non-citizens.  

In the August 2004 case of Al-Kateb v. Godwin, a 4-3 majority of the High Court of Australia held that as long as the Immigration Minister retained the intention of eventually deporting so-called ‘unlawful non-citizens’ (even if it was unlikely that they could be deported in the foreseeable future), their indefinite administrative detention was not punitive and therefore constitutional. According to the majority, Australia’s Parliament has the power “to enact legislation that requires unlawful non-citizens to be detained so as to ensure that they do not enter Australia or the Australian community and can be deported when, and if, it is practicable to do so.” Al-Kateb, which approved what one dissenting Justice likened to “a system of segregation by incarceration without trial for any offence and with no limit of time or a limit fixed only by an executive opinion as to the ultimate possibility of their removal from Australia”, highlights more than ever the need for a national bill of rights in Australia. 

The petitioner in Al-Kateb, Ahmed Ali Al-Kateb, was a stateless Palestinian when he arrived in Australia in December 2000. After his asylum application was rejected, he asked to be returned to either Kuwait, where he was born, or to the Gaza strip, but neither jurisdiction would accept him. The petitioner in a companion case to Al-Kateb, Abbas Al Khafaji, was an Iraqi national, who grew up in Syria and arrived in Australia in January 2000 without documents. Mr. Al Khafaji’s asylum application was also denied—in his case, because he could attain sanctuary from a third country, Syria. Mr. Al-Kateb and Mr. Al Khafaji had been released pending their appeals to the High Court, but the Court’s decision repealed their release. However, then-Immigration Minister Amanda Vanstone eventually granted these men bridging visas at her discretion and released them. 

However, Peter Qasim, an asylum seeker of Kashmiri origin, was not so fortunate, and was detained even longer than Mr. Al-Kateb and Mr. Al Khafaji. He was held for six years and ten months before being granted a conditional visa that allowed his release. By the end of his long detention, he had been moved to a psychiatric facility and was being treated for depression.  

This listing of cases is illustrative rather than exhaustive, and if the duration of these asylum-seeker’s detentions is not a cause for concern, the conditions of their detention are.

In 2002, Justice P.N. Bhagwati, former Chief Justice of India, embarked on a mission to Australia on behalf of the United Nations High Commissioner for Human Rights to observe and report on the conditions of detention and treatment of asylum seekers in detention. In his brief visit, Justice Bhagwati had many concerns specifically with regards to the length of detentions, the lack of proper judicial review, the fact that those deemed to meet the definition of a refugee often continued to be detained, and the detention of children. 

Despite these detentions’ supposedly not being ‘punitive’, the harsh conditions and long durations under which individuals have been detained are unwarranted and inhumane, but constitutional according to Australian courts.  

Rounding out an August 2004 trio of regressive immigration law cases, the High Court of Australia ruled in Behrooz v. Secretary of the Department of Immigration & Multicultural & Indigenous Affairs that Australia has the power to detain non-citizens regardless of whether the conditions of detention are harsh and inhumane. Mahran Behrooz, an Iranian national without a visa, escaped in November 2001 from the same Woomera Detention Centre that Justice Bhagwati would criticise the following year. He was apprehended and appealed his escape charges by maintaining that the harsh conditions at Woomera went far beyond “immigration detention”. The Court denied the appeal, concluding that the conditions of detention could not be raised as a defence to the offence of escaping custody.  

The prospect of Australia’s indefinite and allegedly ‘nonpunitive’ detention of non-citizens without review of the conditions of detention is appalling in its own right.  But the situation grows more fraught when the detained non-citizen is also being accused or investigated for violating national security laws.  

In 2006, Professor Martin Scheinin, the United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism, submitted his study on Australia’s counter-terrorism laws and practices. He expressed grave concern on numerous human rights fronts, including Australia’s lack of domestic human rights legislation, the power of Australian authorities to indefinitely detain non-citizens, and what the UN Special Rapporteur identified as several “actual and potential human rights violations within Australia’s counter-terrorism regime.” 

It was under this strict counter-terrorist legislation criticised by Professor Scheinin that Dr. Haneef was initially held without charge for 12 days. But after a judge considered the authorities’ initial submission of the evidence of Dr. Haneef’s aiding the terror attack in the UK and concluded that such evidence did not warrant continued detention, the Australian government cancelled his visa and relied on its draconian immigration laws to accomplish what even its national security laws could not. 

The purpose of a visa cancellation is to terminate that person’s right to be in Australia, yet in Dr. Haneef’s case, the intention is clearly not to deport him immediately but to hold him long enough for the authorities to make a case for prosecution. This, a legal expert points out, “is a serious misuse of power for an ulterior purpose and an illegitimate interference with the process of criminal justice.”  

Public outrage 

Legal experts, activists and a large cross-section of Australian citizens have criticised the Australian government’s action. As The Sydney Morning Herald pointed out, the visa cancellation had “allowed the Government to override the decision of the Brisbane magistrate and ensure that Haneef, whether guilty or not guilty of the terrorism charges, never tastes freedom again in Australia.” 

This public furore has led some members of the Australian government to leak to the press a plan to deport Dr. Haneef “to contain the political fallout from a case that [they] fear is becoming farcical.” If that is the eventual outcome, that begs the question of the political benefit Australian ministers hoped to win in the upcoming elections by going after Dr. Haneef in the first place.

 Human Rights Features