One of the most memorable images of 2007 was the photograph taken by press photographer Eddie Safarik of Mohamed Haneef being driven away from the Brisbane watchhouse in a police van. Dressed in a regulation jumpsuit, Haneef is huddled at the far end of the gleaming metal interior of the van, bending so low over his knees that his face is entirely hidden. A heavy padlock hangs under a thick bolt in the foreground of the photo.
Indeed, so powerful was this image, that it won Safarik the best news photograph award at the 2007 Walkley awards for journalistic excellence. The episode that the photo documents, however, reflects anything other than excellence in Australia's contribution to the so-called war on terror.
On July 2, 2007, Dr Haneef was arrested following the police establishing a link between a mobile phone SIM card that he had left with relatives in Britain a year earlier and terrorism attacks in London and at Glasgow airport. After being held for 12 days, Dr Haneef was charged under section 102.7(2) of the Criminal Code Act 1995 with providing support or resources (the SIM card) to a terrorist organisation and being reckless as to whether the organisation was terrorist.
The circumstances of Dr Haneef's arrest and of his subsequent detention, charging, prosecution and the ultimate discontinuance of the prosecution are, of course, currently the subject of an inquiry by former NSW Supreme Court Judge, John Clarke QC.
The terms of reference of the inquiry, amongst other things, also cover the cancellation of Haneef's Australian visa and ''the administrative and operational procedures and arrangements of the Commonwealth and its agencies [including the AFP and ASIO] relevant to these matters''. One of the loudest criticisms aimed at our terrorism offences, such as that with which Dr Haneef was charged, is that they are overly broad in their attempts to cover a wide range of behaviour that might be connected with terrorism and so risk peripheral players or even innocents being charged. Those terrorism offences also support enhanced powers of detention which, themselves have been criticised for their heavy-handedness, disregard for normal criminal procedures and a lack of transparency and accountability in how they are exercised.
Recent events in the inquiry only serve to emphasise the aptness of these kinds of criticisms.
In his opening statement of April 30, 2008, Clarke expressed his intention that the proceedings of the inquiry should ''as far as possible be made public''. However, he recognised that matters concerning national security or information which might place at risk ongoing prosecutions or upcoming trials in Britain in relation to the London and Glasgow attacks might affect what could be publicly released.
On July 28, Clarke issued a further statement. In it, he advised that, in light of the Metropolitan Police Service and British Crown Prosecution Service declining to allow the AFP to authorise publication by the Inquiry of documents sourced from those services he ''had no choice but to advise the Attorney-General that the inquiry will be unable to proceed effectively unless it is able to withhold publication of a large part of the proceedings.'' To do otherwise, he said, would ''seriously damage the international relationship between the two countries'' when the maintenance of such a relationship was ''an important element of national security''.
So, while the submissions by ASIO (setting out its consistent advice to government and other agencies that Dr Haneef posed no security threat) and the Queensland Police Service (stating that it had told the AFP that there was not enough evidence to charge Dr Haneef with a s 102.7 offence) are readily available on the inquiry website, the AFP submission is not. Nor, following Mr Clarke's statement of 28 July, will statements, transcripts of interviews or related documents be posted on the Inquiry's website.
What should not be forgotten, however, is that there already exists on the public record a statement from a senior AFP officer about that agency's approach to the charging and prosecution of terrorism offences. That statement, which has already been drawn to the attention of the inquiry by the Australian Lawyers Alliance, was made in the context of another prosecution that of university student Izhar ul-Haque who was charged with training with a terrorist organisation in Pakistan. The charges against ul-Haque were dropped in November 2007 after Justice Adams ruled certain records of interview inadmissible as evidence.
As was widely reported at the time (including by Sally Neighbour in The Australian, November 13, 2007), senior AFP agent Kemuel Lam Paktsun told the court that the AFP was acting under directions to test the limits of the terrorism offences: ''At the time, we were directed, we were informed, to lay as many charges under the new terrorist legislation against as many suspects as possible because we wanted to use the new legislation. So regardless of the assistance that Mr Ul-Haque could give, he was going to be prosecuted, charged, because we wanted to test the legislation and lay new charges, in our eagerness to use the legislation.''
Whatever eventually comes out of the inquiry, there are already several conclusions that can be drawn by interested observers. First, the very broad scope of offences such as s102.7 makes it possible for a serious terrorism charge to be laid against someone like Dr Haneef. Second, the broad detention powers attaching to the terrorism offences allow for someone like Dr Haneef to be held for days at a time before such charges are even laid. Finally, the concept of ''national security'' allows for government agencies like the AFP to avoid public scrutiny of how it goes about its business.
So much for accountability.
Miriam Gani is a Senior Lecturer at the ANU College of Law and has recently published, with Penelope Mathew, an edited collection titled Fresh Perspectives on the ''War on Terror''.