Submission to the Clarke Inquiry on the Case of Dr Mohamed Haneef (2008)

Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

to the

CLARKE INQUIRY

on the

CASE OF DR MOHAMED HANEEF

May 2008

Human Rights and Equal Opportunity
Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

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A. SUMMARY OF SUBMISSION

1. The Human Rights and Equal Opportunity Commission (‘HREOC’)
   makes this submission to the Clarke Inquiry, which has been established to
   inquire into the case of Dr Mohamed Haneef. This inquiry raises important issues
   of law and practice and HREOC welcomes the opportunity to make a
   submission.

2. HREOC’s submission addresses the following matters covered by the
   terms of reference:

   • the arrest, detention and charging of Dr Haneef;

   • the cancellation of Dr Haneef’s Australian visa and the issuing of a
     criminal justice stay certificate;

   • the administrative and operational procedures and arrangements of the
     Commonwealth and its agencies relevant to these matters; and

   • deficiencies in the relevant laws, administrative and operational
     procedures and arrangements of the Commonwealth and its agencies.

3. HREOC makes a number of recommendations to the Clarke Inquiry which can be
   summarised as follows:

Part IC, Division 2 of the Crimes Act 1914
(Cth)

• Recommendation 1: That the Clarke Inquiry recommends review
  and amendment of s 23CA(8)(m) of the Crimes Act to avoid the potential for
  arbitrary or unlawful detention in breach of Article 9 of the International
  Covenant on Civil and Political Rights (‘ICCPR’). Article 9 of
  the ICCPR outlines the right to liberty and security of the person.

Section 102.7 of the Criminal Code

• Recommendation 2(a): That the Clarke Inquiry recommends review and
  amendment of s 102.7 of the Criminal Code to include a threshold of materiality
  in respect of the provision of “support” or
  “resources”.
  

• Recommendation 2(b): That the Clarke Inquiry recommends consideration
  of including a definition of “support” and “resources”
  for s 102.7 of the Criminal Code.

Section 501(3) of the Migration Act 1958 (Cth)

• Recommendation 3: That the Clarke Inquiry recommends review and
  amendment of s 501(3) of the Migration Act to increase ministerial
  accountability for the cancellation of a visa, including requiring the Minister
  to comply with the rules of natural justice and the s 499 Direction.
  

Additional Recommendation

• Recommendation 4: That the Clarke Inquiry recommends the
  establishment of an Independent Reviewer for Australia’s terrorism law
  regime. HREOC believes an Independent Reviewer should:

  • have the power to obtain from any agency or person information that he or
    she considers is relevant to the review, including intelligence agencies;
    and

  • be required to consider the human rights impact of counter terrorism
    laws.
    

B. THE PRE-CHARGE DETENTION OF DR HANEEF

4. Part IC, Division 2 of the Crimes Act 1914 (Cth) (the ‘Crimes
   Act’) outlines the powers of detention in respect of pre-charge detention.
   HREOC is concerned that the Part IC, Division 2 regime does not provide
   detainees sufficient protection in respect of their right to liberty and
   security of the person (Article 9 of the ICCPR). In particular, HREOC is
   concerned that pre-charge detention under Part IC, Division 2 permits violations
   of:

   • the prohibition on arbitrary detention (Article 9(1));

   • the right of an individual to be informed, at the time of arrest, of the
     reasons for his or her arrest and be promptly informed of any charges against
     him or her (Article 9(2)); and

   • the right of any person arrested or detained to be brought promptly before a
     judge or other officer authorised to exercise judicial power to rule on the
     lawfulness of that detention (Article 9(3)).

5. These rights are also fundamental to ensuring that any detention does not
   compromise the right to a fair trial (Article 14 of the ICCPR).

6. Dr Haneef was held in pre-charge detention for 12 days by the Australian
   Federal Police (‘AFP’) on suspicion of committing a terrorism
   offence. During that time, the initial investigating period was extended to 48
   hours, and the AFP also obtained an order for a specified reasonable period of
   time (a ‘dead time period’) during which the suspension or delay of
   questioning was to be
   disregarded.^[1]

The
Part IC, Division 2 scheme (ss 23C – 23E)

7. Under Part IC, Division 2, the maximum period of time during which a suspect
   for a terrorism offence can be questioned is 24
   hours.^[2] The actual period of
   pre-charge detention, however, may be much longer. This is because there are a
   number of reasons why time spent in pre-charge detention can be disregarded for
   the purposes of calculating the amount of time the detainee is being
   questioned.^[3] These are known as the
   ‘dead time periods’. In Dr Haneef’s case, his period of
   detention was extended pursuant to a specific ‘dead time’ provision
   for the investigation of terrorism offences, s 23CA(8)(m) of the Crimes
   Act.

8. Section 23CA(8)(m) was inserted into the Crimes Act by the Anti-Terrorism
   Act 2004 (Cth). At this time, the 12 hour limit (in total) on pre-charge
   detention was removed, and no alternative safeguard of an absolute limit was
   inserted in its place. There was considerable concern at the time that the
   provision could be used to facilitate a period of pre-charge detention far
   beyond the existing limit of 12 hours. Concern that an individual could be held
   pursuant to s 23CA(8)(m) for 48 hours was specifically rejected by the
   Government,^[4] and the then Minister
   for Justice, The Hon Christopher Ellison, gave an undertaking that the
   Government would conduct an independent review of s 23CA(8)(m) after it had been
   in force for 3 years.^[5] He considered
   that this would be an opportunity to “...exhaustively analyse the
   operation of the new provisions and remedy any evident operational or legal
   shortcomings”.^[6] This review
   was due by 30 June 2007 and has not yet occurred.

The prohibition
on arbitrary detention

9. The prohibition on arbitrary detention requires that both laws and their
   enforcement must not be arbitrary. The United Nations Human Rights Committee has
   stated that:

   ...the concept of arbitrariness is intended to
   guarantee that even interference provided for by law should be in accordance
   with the provisions, aims and objectives of the Covenant and should be, in any
   event, reasonable in the particular
   circumstances.^[7]

10. In determining whether a period of pre-charge detention violates the
    prohibition on arbitrariness, a proportionality test must be applied. This means
    considering the purpose of detention and the means by which that purpose is
    achieved (the nature and length of detention). The means must be
    ‘proportional’ to the purpose.

11. The European Court of Human Rights (‘ECtHR’) has developed some
    useful guidance for assessing proportionality, including:

    • (a) the extent to which the action restricting the right interferes with the
      right, including whether it wholly destroys the enjoyment of the right;

    • (b) whether a less restrictive, yet equally effective, alternative measure
      is available to the State to achieve the purpose; and

    • (c) whether there are any effective safeguards or legal controls over the
      measures in question. This includes the adequacy of compensation or legal
      remedies for those affected by the
      measures.^[8]

12. HREOC is concerned that there are not sufficient safeguards in respect of a
    grant of a ‘dead time period’ pursuant to s 23CA(8)(m) of the Crimes
    Act to ensure that violations of Article 9 of the ICCPR do not occur. In
    particular HREOC notes:

    • a broad discretion is granted to an investigating official to specify the
      length of the requested ‘dead time period’;

    • there is no limit on how long the period may be, or how many applications
      may be made;

    • a suspect’s legal representative is likely to have very limited
      information upon which to challenge such an application; and

    • a broad range of persons are empowered to make a ruling on a ‘dead
      time’ application pursuant to s 23CA(8)(m), including justices of peace,
      who are not officials exercising judicial
      power.^[9]

13. Given the significant consequences of a grant of a ‘dead time’
    period pursuant to s 23CA(8)(m) of the Crimes Act, HREOC considers it is
    important that there are stringent checks at each step of the process to ensure
    that continuing pre-charge detention is both lawful and not arbitrary, as
    required by Article 9 of the ICCPR. In HREOC’s view, Dr Haneef’s
    case demonstrates that the initial concerns that a grant of a ‘dead time
    period’ pursuant to s 23CA(8)(m) of the Crimes Act could be used to
    authorise a prolonged period of pre-charge detention (significantly beyond the
    previous 12 hour limit) were well-founded. HREOC considers that an absolute
    limit on the length of pre-charge detention is an important safeguard to ensure
    that detention does not become disproportionate and thus, arbitrary in violation
    of Article 9(1) of the ICCPR.

The right to know the charge
against you

14. The ICCPR provides a number of essential procedural safeguards to ensure
    that the individual’s right to liberty and security of the person is
    respected.

15. Article 9(2) of the ICCPR requires anyone who is arrested to be informed, at
    the time of the arrest, of the reasons for his or her arrest and to be promptly
    informed of any charges against him or her.

16. The ECtHR has held that it is not sufficient to inform a detainee that he or
    she has been arrested pursuant to particular powers of the police, for example
    emergency legislation. In Ireland v United
    Kingdom,^[10] Ireland alleged
    that the United Kingdom’s detention of IRA suspects under emergency
    legislation violated the equivalent of Article 9(2) of the ICCPR (amongst other
    violations).^[11] The ECtHR held that
    it was a breach of the equivalent of Article 9(2), on its
    own,^[12] to not tell detainees the
    reason for their arrest and to only tell them that they had been arrested
    pursuant to the emergency legislation. The ECtHR held that there was not a
    sufficient degree of specificity to enable the detainee to know why he had been
    arrested. A similar concern could be raised in respect of informing a detainee
    that he or she had been arrested on suspicion of a terrorism
    offence.

The right to be brought promptly before a court

17. Article 9(3) of the ICCPR provides, in part, that anyone arrested or
    detained on a criminal charge shall be brought promptly before a judge or other
    judicial officer and shall be entitled to trial within a reasonable time or to
    release. The United Nations Human Rights Committee has emphasised in its General
    Comment to Article 9 that “promptly” means no longer than a
    “few days”.^[13] In
    addition, such a judicial officer must be independent of the executive,
    personally hear the person
    concerned,^[14] and be empowered to
    direct pre-trial detention or to release the person
    arrested.^[15]

18. HREOC is concerned that the procedure for the grant of a ‘dead time
    period’ pursuant to s 23CA(8)(m) of the Crimes Act does not guarantee that
    an individual will be brought before a judge or another officer empowered to
    order the individual’s release from detention when an application for
    ‘dead time’ is made. Section 23CB(3) permits a broad range of
    persons to make a ruling on a s 23CA(8)(m) application, including any justice of
    the peace.^[16] A justice of the
    peace is not an officer authorised by law to exercise judicial power and is also
    not empowered to order the individual’s release from detention.

19. In addition, there is also no guarantee in s 23CA(8)(m) that the individual
    will be brought before a court for the hearing of the
    application.^[17] An application for
    ‘dead time’ extension may be made in writing, or by telephone,
    telex, fax or other electronic means. HREOC notes that it is an important
    procedural safeguard that the detainee is brought before a court, and an
    essential element of Article 9(3) of the ICCPR. There are a number of reasons
    for this safeguard, including ensuring that the detainee is not subjected to
    maltreatment while in custody, and for ensuring that the detainee’s
    representative has the opportunity to respond to the argument for the
    detainee’s continued detention.

20. HREOC considers that these are significant structural weaknesses of the
    pre-charge detention legislative framework.

C. THE CHARGING OF DR HANEEF

21. Dr Haneef was charged on 14 July 2007 with the offence of intentionally
    providing support or resources to an organisation that would help the
    organisation in preparing, planning, assisting in or fostering the doing of a
    terrorist act, reckless as to whether the organisation was a terrorist
    organisation, contrary to s 102.7(2) of the Criminal Code.

22. HREOC notes that both the Security Legislation Review Committee
    (‘SLRC’) and the Parliamentary Joint Committee on Intelligence and
    Security (‘PJCIS’) have recommended that s 102.7 be amended to
    resolve the ambiguity of the term
    “support”.^[18]

23. Particular attention has been directed at the potential of s 102.7 to unduly
    restrict the right to freedom of expression. In the view of both the SLRC and
    PJCIS, s 102.7 was not intended to prohibit the publication of views that
    appear to be favourable to a terrorist organisation and its stated objective.
    The PJCIS concluded that the underlying policy rationale of s 102.7
    “...would indicate that the conduct must be some type of material
    support not mere
    words”.^[19]

24. HREOC considers that the lack of an express threshold of materiality, and
    the lack of a definition in the Criminal Code of “support” and
    “resources” give s 102.7 an unduly broad scope. HREOC supports the
    PJCIS’s recommendation that s 102.7 be amended to increase the threshold
    of the offence, at the least in respect of “support”, to
    “material support”,^[20] as well as to considering applying this to “resources”.

25. HREOC notes the submission of Lex Lasry QC to the
    PJCIS.^[21] Mr Lasry QC highlighted
    that “support” and “resources” form the actus reus for
    the offences in s 102.7 and, accordingly, should be defined with certainty. He
    noted that the equivalent of this offence in the United States, §2339A in
    Title 18 of the United States Code, defines “material support or
    resources”. The definition in §2339A is as follows:

    As
    used in this section –

    (1) the term ‘material support or resources’ means any property,
    tangible or intangible, or service, including currency or monetary instruments
    or financial securities, financial services, lodging, training, expert advice or
    assistance, safehouses, false documentation or identification, communications
    equipment, facilities, weapons, lethal substances, explosives, personnel (one or
    more individuals who may be or include oneself), and transportation, except
    medicine or religious materials;

    (2) the term ‘training’ means instruction or teaching designed to
    impart specific skill, as opposed to general knowledge; and

    (3) the term ‘expert advice or assistance’ means advice or
    assistance derived from scientific, technical or other specialised knowledge.

26. HREOC agrees with Mr Lasry QC that a definition of “support” and
    “resources” would significantly assist in the application and
    interpretation of the s 102.7 offences.

D. THE CANCELLATION OF DR HANEEF’S VISA AND ISSUE OF CRIMINAL JUSTICE
STAY CERTIFICATE

27. HREOC is concerned by the overly broad nature of the Minister for
    Immigration and Citizenship’s power to cancel a visa on the ground of
    character under s 501(3) of the Migration Act 1958 (Cth) (the
    ‘Migration Act’). This is a power which the Minister exercises in a
    personal capacity, and it is subject to only limited grounds of review.

28. HREOC notes that under s 501(3), the Minister is not required to comply with
    the rules of natural justice or the Direction issued under s 499 of the
    Migration Act which provides detailed guidance in respect of the refusal or
    cancellation of a visa under s 501 of that
    Act.^[22] HREOC further notes that
    what constitutes the ‘national interest’ (s 501(3)(d)) is left to
    the Minister’s discretion.

29. The decision to cancel a visa has serious consequences. Its immediate
    effect, in the absence of any grant of another type of visa, is to require that
    the person be taken into immigration detention as an ‘unlawful
    non-citizen’.^[23] HREOC has
    consistently opposed mandatory immigration detention as resulting in arbitrary
    detention in contravention of Article 9(1) of the ICCPR. ^[24]

30. Removal from Australia as a result of visa cancellation may also have a
    significant impact upon the human rights of a person and their family, including
    the rights of their
    children.^[25]

31. Given the significant consequences of a decision to cancel a visa under s
    501(3), HREOC considers it is appropriate that the Minister is required to
    comply with the rules of natural justice and the Direction issued under s 499 of
    the Migration Act in making this decision.

E. THE NEED FOR AN INDEPENDENT REVIEWER OF AUSTRALIA’S TERRORISM LAW
REGIME

32. HREOC has previously called for the establishment of an Independent Reviewer
    of counter terrorism laws,^[26] and
    considers that the case of Dr Haneef illustrates how an Independent Reviewer
    could contribute to effective oversight of the operation of counter-terrorism
    measures.

33. As indicated in the broad terms of reference of the Clarke Inquiry, the case
    of Dr Haneef touches upon a range of legislative provisions and operational
    arrangements within the terrorism law regime, including the Crimes Act, the
    Criminal Code and the Migration Act. The need for the Clarke Inquiry reflects
    the recommendation of the PJCIS for the establishment of an Independent
    Reviewer. In the PJCIS’s view:

    To date, post enactment review
    has been sporadic and fragmented with a focus on specific pieces of legislation
    rather than the terrorism law regime as a whole. This has limited the
    opportunity for comprehensive evaluation and highlights the need for an
    integrated approach to ensure ongoing monitoring and refinement of the law,
    where necessary.^[27]

34. In HREOC’s view, commissioning of independent reviews of individual
    cases such as that of Dr Haneef are critically important for assessing how the
    terrorism law regime is operating as a whole. This system of review, however, is
    reactive to events and is also dependent upon the political will for
    commissioning such a review. The establishment of an Independent Reviewer with a
    statutory mandate for regular, comprehensive reporting would overcome these
    obstacles, ensuring a proactive approach is adopted.

35. HREOC notes that while the Council of Australian Governments (COAG) is due
    to report on Australia’s counter-terrorism laws in 2010, there is a need
    for a more regular mechanism of review, and one which has entrenched
    independence from government. HREOC considers there is substantial value in one
    identifiable individual who is independent of government, to conduct such
    reviews. ^[28] As noted by the PJCIS,
    a single appointee would provide a consistent and identifiable focal point for
    the community and executive agencies, and should be someone of high standing who
    commands respect and is trusted as an impartial and informed source of
    information and analysis. In addition, the appointee could work cooperatively
    with agencies and other stakeholders on an ongoing basis, as issues
    arise.

^[1] ss 23CA(8)(m) and 23CB of the
Crimes Act.

^[2] ss 23CA(4)(b) and
23DA(7) of the Crimes Act.

^[3] See
s 23CA(8) of the Crimes Act.

^[4] Senate Legal and Constitutional Legislation Committee, Anti-Terrorism Bill
2004, 30 April 2004, pp. 29, 35. This was the evidence of Geoffrey McDonald,
Assistant Secretary, Criminal Law Branch, Attorney-General’s
Department.

^[5] 2^nd Reading Speech, Anti-Terrorism Bill 2004, 17 June
2004.

^[6] Ibid.

^[7] United Nations
Human Rights Committee, General Comment 16, §
4.

^[8] John Wadham, Helen
Mountfield, Anna Edmundson, Caolfhionn Gallagher, Blackstone’s Guide to
the Human Rights Act 1998 (4^th edition, 2007), para.
2.113.

^[9] See s 23CB(3) of the
Crimes Act, and para. 17 below.

^[10] Ireland v United
Kingdom (1978) 1 EHRR
91.

^[11] The ECtHR held that it
was a violation of Article 5(2) of the European Convention on Human Rights
(‘ECHR’), which is identical to Article 9(2) of the ICCPR, except
that Article 5(2) of the ECHR also requires that the information is provided in
“a language that the person concerned
understands”.

^[12] The
ECtHR held that as the United Kingdom had lodged a valid derogation pursuant to
Article 15 of the ECHR, declaring a “public emergency”, the
violations of the right to liberty and security of the person, amongst other
violations of the ECHR, were
permissible.

^[13] United Nations
Human Rights Committee, General Comment 8. This also comports with the
jurisprudence of the ECtHR, see Brogan v UK, Series A
145-B.

^[14] The duty to accord a
personal hearing arises from the right to “be brought” before a
judge.

^[15] Manfred Nowak, U.N Covenant on Civil and Political Rights: CCPR Commentary (2^nd edition, 2005),
p.231.

^[16] s 23CB(3) of the
Crimes Act.

^[17] See s 23CB(4) of
the Crimes Act.

^[18] See Security
Legislation Review Committee, Report of the Security Legislation Review
Committee, 21 April 2006 (‘SLRC Report’) p. 13; and
Parliamentary Joint Committee on Intelligence and Security, Review of
Security and Counter Terrorism Legislation, 4 December 2006 (‘PJCIS
Report’), p. 79.

^[19] Ibid, PJCIS Report, p. 79 (emphasis
added).

^[20] Note 11, PJCIS
Report, p. 79.

^[21] Lex Lasry QC, Review of Security and Counter Terrorism Legislation, 17 July 2006 http://www.aph.gov.au/house/committee/pjcis/securityleg/subs/sub12.pdf.

^[22] Migration Act 1958 Direction under section 499, Direction No.
21.

^[23] s 189(1) of the
Migration Act

^[24] See, for
example, Human Rights and Equal Opportunity Commission, A Last Resort? The
National Inquiry into Children in Immigration Detention (2004) http://www.humanrights.gov.au/human_rights/children_detention/index.html.

^[25] See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273, in which the High Court of Australia held that the decision-maker was
required to have regard to hardship to the applicant’s wife and
children.

^[26] See, for example,
Human Rights and Equal Opportunity Commission, Submission to the Security
Legislation Review Committee, January 2006 http://www.humanrights.gov.au/legal/submissions/security_legislation_review.html.

^[27] Note 11, PJCIS Report, p.
21.

^[28] Ibid, p. 20.