During this year there have been several times when the debate has turned from being an attack on the politics of the Coalition to that of politicians in general. The anti-politics strain in this election year is now threatening to really take off over the Haneef case.

Remember what actually happened: recent UK bombing attempts led UK authorities to request that their Australian counterparts detain Haneef on evidence that his SIM card had been discovered in the burning Jeep at Glasgow airport. The UK evidence turned out to be wrong. However, for the UK authorities, it is no big deal. Since 11 September 2001, UK authorities have made 1,228 such anti-terrorists arrests of which only 1 in 5 had enough evidence to lead to even an anti-terrorist charge being made and a mere 41 cases (3% of those detained) were successfully upheld in court. In the eight arrests made around the recent attacks alone, four of them (including Haneef) were released without charge.

So in this context, for Australia’s first anti-terrorist detention to collapse is hardly exceptional. In the UK, despite nearly a thousand anti-terrorist arrests being made without even enough evidence to bring charges, there has been barely a murmur of concern. In Australia, one case has led to outrage. Yet calls for resignation have not been targeted at Mick Keelty, head of an AFP that was reported to have distorted the information in Haneef’s original transcript, or the DPP who allowed a prosecutor to go into court repeating the claim that the SIM card had been found in the Jeep despite it already being confirmed it had not – but to the Immigration Minister who denied Haneef his exit visa.

It is not surprising that the outrage has been less focused on the legal profession or its enforcers, as it is the legal profession that has been leading much of the attack. Since the time the legislation was drawn up, the legal profession has made clear that it is less concerned with the rights or wrongs of detention as such than the greater discretionary role politicians had in enforcing it.

Anti-terrorism legislation that brings in special powers to deal with what look like nihilistic amateurs, as though they were a paramilitary organisation like the IRA, was clearly introduced by the government for political, rather than operational purposes. The trouble is that political consensus has now faded, so the first time the government was pressured to use the powers it was a fiasco. The legal profession played a major role in making it one, not only its members in the DPP who made mistakes presenting evidence but Haneef’s lawyer who by-passed the legal process by leaking the transcript to the media. Most importantly, it was the Brisbane magistrate, Jacqui Payne, who claimed exceptional circumstances to prevent the legislation’s intent on denying bail that led to the Immigration Minister to block Haneef’s visa. It was this over-riding of the ruling of the Brisbane magistrate, rather than Haneef’s original detention, that really raised the ire of the legal profession.

It would be nice if this furore was really about civil liberties and the anti-terrorism powers were significantly reduced to be in proportion to the threat as it really exists – but it is not going that way. It looks more like special pleading from a legal profession for greater control over these extraordinary powers at the expense of politicians – a much less noble cause, whatever embarrassment it causes the current government. Now that it is taking this turn, watch the Labor party move. The government has been trying to drag Labor into this mess but Labor is getting increasingly good at sniffing out a way to use anti-politics to attack the government. Labor is now starting to distance itself from the government by calling for an inquiry headed by the judiciary (rather than politicians). No prizes for guessing who it will be recommending should have more control over the process.

Posted by The Piping Shrike on Tuesday, 31 July 2007.

Filed under The Australian state

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