PREFACE TO DR HANEEF BY JACQUI EWART

This important book chronicles the curious case of Dr Haneef, an innocent man presumed guilty by overzealous police and prosecutors, and over excited politicians and pressmen. That his ordeal lasted only 25 days was due to the courage and dedication of his lawyers and the independence of the magistrate who gave him bail and the judge who condemned the immigration minister for cancelling his visa. But the extent of government misconduct and prosecutorial incompetence gives his case a special significance for the civil liberties of all Australian citizens. At a time when the case for a charter of rights is challenged by the arguments that only elected politicians can be trusted to protect liberty, Jacqui Ewart’s book provides a powerful refutation.

Shockwaves were felt throughout the world when two young doctors tried to bomb a packed London disco and later made a terrorist attack on Glasgow airport. That men professionally dedicated to the saving of life should fall pray (sic) to the barbaric creed that impelled them to attempt the mass murder innocent civilians was both astonishing and frightening. When an Indian doctor employed by a Gold Coast hospital was briefly identified by Scotland Yard as a person possibly connected to these terrorists through a SIM card he had lent to one of their friends several years before, the reaction in Australia was panicky and over the top. The media invented a “sleeper cell” of medical terrorists, politicians gave self-promoting press conferences that prejudiced the defendant and hampered the investigation; senior policemen closed minds that should have stayed open and decided that because there were reasons to suspect Dr Haneef that he must be guilty.

It should in fairness be pointed out that their initial suspicions of Dr Haneef were not unreasonable. It looked as though he was fleeing the country immediately after the attempted atrocity in Glasgow: only then did he book his ticket to India to see his six-day old baby, and it was a one way ticket; his haste of his departure apparently evidenced by the fact that he left washing on the line and dishes in the sink. Police were right to intercept him at the airport and to subject him to a lengthy interrogation (they asked 1,116 questions over a twelve hour period), to clear up all their reasonable doubts. When his answers provided convincing explanations, as they did, he should have been released on bail, and completely discharged a few days later when it became clear that he was not implicated by inquiries in the UK.

Instead, he suffered three weeks of wrongful imprisonment. He was wrongly charged, without evidence, by the Australian federal police and when he applied for bail false statements were made on behalf of the Director of Public Prosecutions to prevent him from obtaining release. John Howard, the Prime Minister, doubtless sensing an early election issue, criticised the Queensland labour government for failing to vet Dr Haneef for terrorist connections, whilst Philip Ruddock stirred up as much prejudice as possible by press statements. It took a courageous magistrate at a second hearing to grant Dr Haneef bail after he had been in detention for ten days, but thereupon the Minister of Immigration, Kevin Andrews, dishonourably and disgracefully contrived to keep him in detention by cancelling his immigration visa on “character” grounds that he should have known to be bogus. A federal court judge, John Clark, later described his action as “astounding”. Meanwhile no less than 600 federal and state police were deployed in an effort to turn over Dr Haneef’s life and contacts in a hunt for “negative” information about him and to give politicians further opportunities for publicising themselves and prejudicing his case by referring to his presumed terrorist associations. And all the time, in secret and in vain, ASIO was reporting to the government that Dr Haneef had no terrorist connections at all.

One merit of Jacqui Ewart’s blow-by-blow account is that it brings home just how much power of the state was brought to bear against Dr Haneef – and how this Goliath was toppled by brave lawyering. Through smears and leaks, police and politicians had sent the media into a feeding frenzy of hostility towards the defendant: after ten days, this abated and turned in his favour when his counsel, Stephen Keim SC, released his 142 page police interview, in which the doctor was able to explain away all suspicions. For this action Keim was vilified, especially by Ruddock (an undistinguished lawyer elevated far beyond his ability), by John Howard, by Police Commissioner Mick Kelty and even by an editor from The Australia, Paul Kelly.

What they all seemed incapable of comprehending was that transcripts of police interviews are not confidential – on the contrary, the right of a suspect and his lawyers to publish them is a vital safeguard against abusive secret policing. Such transcripts are not usually released to the press by the defence, for the simple reason that they usually show defendants in a poor light, struggling to answer difficult questions. However, since Haneef answered every question satisfactorily, and the transcript refuted the smears and falsehoods put about by police and press, it was plainly his lawyer’s duty to put the interview in the public domain. By so doing Mr Keim performed his duty to his client, and to the public and to the court, and his action lifted the miasma of guilt which had covered his client. Those who complained about his “unprofessional” conduct revealed their own ignorance of what the adversary system requires of counsel in these fraught circumstances. For all the obloquy which lawyers attract (sometimes justifiably) the work of Keim and his team, as described in this book, serves as a reminder that dedicated lawyering may be the citizen’s only protection against the abuse of state power.

The book demonstrates beyond any doubt just how preposterous is the claim that liberty will be safe in the hands of politicians – the refrain from those who oppose a charter of human rights. The official report into the Haneef affair, by Judge John Clarke, was an indictment of government ministers for making “astonishing” and “troubling” decisions to deny liberty to an innocent person. On its publication, The Australian newspaper, an obsessive opponent of a charter, argued editorially that a bill of rights was not necessary because overzealous politicians and public servants could be exposed by the media – especially by “The Australian”. “The truth” it pompously proclaimed “was revealed by this newspaper doing its job… by journalists acting on the publics’ right to know”1. Readers of Ms Ewart’s book will learn just how absurd this statement is : the truth was revealed by Stephen Keim QC by releasing Dr Haneef’s interview to the journalist Hedley Thomas, who only then realised how uncritical he had been of the police line that Haneef was a terrorist. Had a federal charter of rights been in place, Dr Haneef would not have been charged without any evidence in the first place, and the minister would have been advised of the illegality of cancelling his visa – and that alone would have saved him at least 14 days of wrongful detention.

But some people never learn. John Howard, for example. As I write, someone has emailed me a report of his latest effusion – a Menzies lecture in Perth, in which he condemns a charter for “handing powers to unelected judges”2. Trust the politicians is his message (“I always thought a member of parliament was a decision maker and not a buck passer”). This book enables readers to test his argument by asking themselves, after reading it, whether in the event of their unjustified arrest or some other incursion on their liberty, they would rather have their dispute with the authorities decided by the likes of Kevin Andrews and Philip Ruddock, or by magistrate Jacqui Payne (who gave Haneef bail), or Justice Jeffrey Spender, (who quashed Andrews decision to cancel the visa). Judges are unelected precisely so they may decide without fear or favour between the citizen and the state. Any charter that promotes trial by judges as against trial by politicians or trial by media, should be welcomed by all thinking Australians.

1 See “Scrutiny can prevent another Haneef case” The Australian 24th December 2008.
2 Rights Bill to empower unelected: Howard Australian Associated Press August 27th 2009.