Off the Presses

The Haneef Case: An Australian encounter with counter-terrorism policing

On 2 July 2007, Indian citizen Dr Mohammed Haneef was boarding a flight from Australia to return to his family in India, when he was arrested as a suspected terrorist. Although he had been working as a hospital registrar in Australia on a valid long stay business visa since the previous September,¹ in the turbulent two months that followed his arrest the Australian Federal Police (AFP) fumbled their investigation and Haneef unfairly endured a confused proceeding of justice. He was held in detention without charge for 12 days, charges were laid, charges were dropped, his visa was revoked, he was detained again, until finally all proceedings were abandoned due to insufficient evidence.

Here, the conduct of the AFP investigation is examined, along with the public response to it. Principally, there was a failure of the police in the handling of the case and a failure of the Federal Government to respond appropriately. However there was a triumph of deliberative involvement on the part of the Australian media and the public that showed the importance of maintaining transparency in counter-terrorism policing and ensuring the actions of the police remain subject to public scrutiny.

The events unfolded

Just days before Haneef's arrest there had been two failed terrorist attacks in London and Glasgow. On 29 July, police in London had discovered and disabled two car bombs and the following day a car was set on fire and driven into the doors of the main terminal at Glasgow International Airport. Three days later, Scotland Yard confirmed that eight people had been arrested in relation to the attempted attacks, all of them doctors or medical students, and the international headlines started to fly about the "doctors of death" - a possible international terrorist network of doctors.² It was in this context that Mohammed Haneef was arrested by the AFP, who had been contacted with intelligence from the police at Scotland Yard.

The Australian Crimes Act 1914, as amended by Australia's anti-terrorism legislation (the Anti-Terrorism Act 2004) allows for a terrorism suspect to be questioned for up to 24 hours, as opposed to the 12 hours prescribed for other serious offences.³ What came to light in this case is that this provision permits the time limit to spread across an undefined number of days whereby, with the permission of a magistrate, police can designate "dead time" during the process where the clock is literally stopped while the suspect remains in custody. This was the section that allowed Haneef to be detained for questioning over a twelve-day period, from 2 to 14 July and interviewed by a state Detective Sergeant and an AFP Agent. On the twelfth day, Haneef was finally charged with the offence of recklessly providing support to a terrorist organisation.⁴

The factual basis for the charge was that Haneef had given his mobile phone SIM card to his second cousin after he had left England to start work as a hospital registrar in Queensland, Australia. The cousin was Sabeel Ahmed who had been charged with withholding evidence over the attempted UK attacks when his brother was arrested in the car at Glasgow. The relevance of Haneef's intention in giving the SIM card was irrelevant as was the part it might have played, demonstrating to the public the potentially innocent and tenuous actions that can fall within broad anti-terrorism laws.

One of Haneef's lawyers (Stephen Keim SC) revealed that, based on conversations with the AFP, Haneef might have been held for a further six weeks without charge under the laws if he was not charged. Two days after the charge was laid, Haneef was released on bail, a significant step considering the presumption against granting bail for those charged for terrorism offences in the criminal code. The Magistrate decided that cumulative reasons were enough to satisfy bail: Haneef was not alleged to have direct involvement in the attacks, the SIM card was not alleged to have been used in the attacks. He had no criminal record, a good employment record and he would be under surveillance. This was met with opposition from the Australian Government, which publicly claimed it had evidence to show Haneef was a security threat.

Shortly after bail was granted, the Australian Immigration Minister Kevin Andrews stepped in, cancelling Haneef's visa on the basis that he failed the "character test" and ordering that he be held in immigration detention until he appeared in court over the terrorism charge.⁵ The move to detain him under immigration laws drew strong criticism for jeopardising Haneef's chance of a fair trial, interfering with the system of justice and the presumption of innocence before the case against Haneef had a chance to be heard in court. Generally a decision to cancel a visa would only stem from a conviction, rather than a pre-emptive cancellation based on "secret evidence".

Despite this, Haneef was placed in immigration detention on 18 July, after which point the case against him began to fall apart as the media revealed flaw after flaw in the AFP's investigation and the intelligence they had gathered.

"Keystone cops" and the intelligence failure

On the same day Haneef was taken into immigration detention at the Wolston Correction Centre and Haneef’s lawyers appealed the Minister’s decision, his lawyer also leaked the transcript of the AFP interview to prominent national newspaper, showing that a number of central statements given by the police in a court affidavit were actually false. Among other things, contrary to police allegations, Haneef had not shared a flat with his cousins in the UK and he did have valid explanation for his one-way ticket back to India.

This was just the first blow. Two days later, another prominent newspaper revealed that the SIM card evidence was faulty. Despite the public declaration from the AFP that the SIM card had been found in the burning jeep at Glasgow it turns out it had actually been found in Liverpool, over 300 kilometres from the attempted terrorist attacks, where Haneef had left it with his cousin – in order not to waste the credit balance. To add even more complications, another two days later media reports emerged that Haneef was being investigated over a planned terrorist attack in Queensland. The reports were false and Commissioner Keelty was forced to publicly deny them.

At this point, strong demands were issued from Haneef’s lawyers, the media and the public to know on what basis the charges were resting on and who was responsible for laying charges based on faulty evidence. Another three days of intense media criticism of the AFP followed and the Commonwealth DPP (Damien Bugg QC), who had filed the charges, announced a review of all material in the case. This he did, and the following day the charges of supporting a terrorist group were withdrawn. The DPP publicly stated that evidence to support the case was unlikely to be obtained and that, in his view of the matter “a mistake has been made.” Haneef left immigration detention immediately, and with visa still revoked, returned to India on 29 July. At this point all authorities went into damage control.

The lack of evidence was contrary to all of the Police Commissioner’s public statements. At a 14 July press conference, Commissioner Keelty had stated that “[t]he charge has come about as a result of almost 12 days of intense investigation. I can assure… that the investigation… has been driven by the evidence and driven by the facts and driven by the inquiries emerging both out of Australia and out of the UK.”⁶ Yet as it turns out, the real evidence was not driving anything. It did not even exist. The investigation should have shown how little evidence there was to justify a charge, not the other way around. In addition, the Commissioner continued to back flip on his public statements.⁷

That the AFP is Australia’s central counter-terrorism body makes the messy investigation more concerning. As the events were unfolding, Queensland’s premier openly called them “keystone cops” and recommended a senate inquiry. A former chief of the National Crime Authority went so far as to say that their actions demonstrated “monumental incompetence… This is Australia’s frontline against terrorism and it has failed terribly.”⁸ But the Police Commissioner maintains that all their actions were justified and refuses to take any blame for the AFP’s role in providing faulty intelligence to the prosecutor. After Haneef returned to India, the Commissioner announced that they were still confident in pressing charges: “We’ve had four weeks… of an investigation spanning three continents, with enough information to fill 36,000 four drawer filing cabinets for us to examine. We will take all the time we need to thoroughly investigate every lead and piece of evidence.” ⁹

Yet contrary to that persistence, in October the Commissioner executed yet another back flip by controversially distancing the AFP from the matter and placing responsibility for the charge on the prosecution. In an interview, he stated that the charge was “touch and go”, that he had always been of the opinion there was not enough evidence and had personally expressed this to the Commonwealth Prosecutor, on whom the decision rested whether to place charges “independent of the police”.¹⁰ These comments came after the Commonwealth Prosecutor had already left his position. They also coincided with the demotion of a Brisbane state prosecutor, whose only mistake seemed to be that he relied on the evidence provided by the AFP. The blame has been cast where it seems not to be due. How could the AFP know the weaknesses of their case and yet stand idle while incorrect evidence was given to the prosecutors and inaccuracies were presented before the court?

While the Australian Prime Minister defends the AFP, stating that “when dealing with terrorism it’s better to be safe than to be sorry”,¹¹ the imperative of safety does not justify an incompetent criminal investigation where police were able to push the boundaries of permissive new anti-terrorism investigative powers, extended detention powers and broadly defined new offences of that they had little experience of dealing with.

The case is not over yet. Whether the Immigration Minister was validly exercising his powers in his decision to cancel Haneef’s visa will be finally assessed in the Minister’s appeal to the Federal Court, to be heard on November 15 2007. To make things more complicated calls for the Minister’s resignation surfaced in early November as Haneef’s lawyer obtained emails between the AFP and the Immigration Department, suggesting that the Minister was subverting the course of justice and the court’s decision to release Haneef on bail. At the time of writing the Minister had not yet responded.

The importance of public scrutiny in police accountability

More optimistically, a significant success of the case has been in the way it exposed a public sphere keenly interested in the justice system and how Australia’s anti-terrorism measures are affecting it.

It showed a civil society, lawyers and numerous public actors of high profile all willing to speak out against the way the laws are being used and questioning the legitimacy of the actions and powers of the police. The Australian press, along with lawyers, civil society and the general public – ten thousand of who signed an online petition to have Haneef’s visa reinstated – perceived an injustice in the police handling of the case and demanded it to be put right. Some argue they were primed by the media coverage of Guantanamo Bay prisoner David Hicks to stand up against injustice and due process abuses towards terrorism suspects and keen to discover how Australian anti-terrorism powers would be put to practice and on what basis an individual could be suspected and charged.¹² What resulted was a demonstration of deliberative involvement as an important check on the counter-terrorism response. Without this public participation, the case would not have transpired in the way it did. The anti-terrorism amendments were laid open for scrutiny as were the powers of the AFP and the executive under these laws.

It remains to be seen whether the Immigration Minister will be successful in cancelling Haneef’s visa or come under further attack for his initial decision. In relation to the police, it remains to be seen if the Police Commissioner will suffer from the conduct of the AFP in this case, how the police will perform in Australia’s next terrorism investigation and how many of Australia’s still untested anti-terrorism laws will be employed.

Since 2001, Australia has enacted forty-four anti-terrorism statutes amending the criminal law, several of which affect police powers. Many of these have not yet been applied. The Haneef experience is just one that has put them to the test. Open public debate as the laws are first being applied by the police is incredibly important and it is an experience all jurisdictions can learn from.

Gudrun Dewey
Programme Officer
International Police Reforms Programme
Commonwealth Human Rights Initiative

1.   Subclass 457 - Business (Long Stay) (Class UC) visa.
2.  See eg, "Terror Suspects all Linked to NHS" BBC News (4 July 2007): http://news.bbc.co.uk/2/hi/uk_news/6265500.stm as on 9 October 2007.
3. Crimes Act 1914, Part 1C.
4. Criminal Code (Australia), section 102.7(2).
5.   Section 501 of the Migration Act 1958 provides a number of grounds on which the Minister can make a decision to cancel a visa. In the case of Haneef he had failed the character test under s 501(6)(b) because "the Minister considered he had an association with someone else whom the minister reasonably suspected had been or was involved in criminal conduct." See Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (Federal Court of Australia, Justice Spender).
6. AFP Media Release (14 July 2007) "Commissioner Keelty's Comments From Conference": http://www.afp.gov.au/media_releases/national/2007/commissioner_keeltys_comments_from_press_conference_-_saturday_14_july_2007
7. At first it was that the SIM card was stated to have been found in the jeep, then as found in the vicinity of the attacks, and then, when that turned out to be false, the AFP made a statement that the Commissioner's statements had only meant to say the SIM was found in a place connected to those connected to the attacks.
8. Neighbour, S, "Police chief on the back foot" The Australian (Australia), 4 August 2007: http://www.theaustralian.news.com.au/story/0,,22185126-28737,00.html?from=public_rss. See also ABC News, "Haneef's release saved Aussie Way: Beattie", 28 July 2007: http://www.abc.net.au/news/stories/2007/07/28/1990843.htm.
9. Stewart, C, "We've only just begun on Haneef" The Australian (Australia), 4 August 2007: http://www.theaustralian.news.com.au/story/0,25197,22186214-601,00.html.
10. Ellen Fanning (26 October 2007) "Interview: Going for the doctor" The Bulletin: http://bulletin.ninemsn.com.au/article.aspx?id=308380.
11. Matt Peacock, 7.30 Report, http://www.abc.net.au/7.30/content/2007/s1992302.htm
12. “The Hicks case has been the catalyst for the public interest in Haneef.”: See News.com.au, “Haneef case a farce: like Hicks: law council”, 24 July 2007: http://www.news.com.au/story/0,23599,22126382-29277,00.html. See also The World Today, “Haneef case casts new light on Hick’s treatment”, 24 July 2007: http://www.abc.net.au/worldtoday/content/2007/s1986806.htm.