Indian doctor Dr Haneef was charged on the weekend — after being held without charge for twelve days — with “recklessly” supporting a terrorist organisation by giving his cousin a mobile phone SIM card around one year ago. Dr Haneef argues that he gave it to his cousin before departing the UK because he had unused credit remaining on his account. The government alleges that by giving the SIM card to his cousin, Haneef had recklessly supported a terrorist organisation although they do not suggest that he was involved in the act or had foreknowledge of the act.
As Peter Faris, QC, summarises today, four things now need to be established to prove his guilt:
First, that Haneef provided the card to the terrorists.
Second, that at the time he knew or believed they were planning a terrorist attack.
Third, that he knew or believed the SIM card might be used in the attack or the planning of it.
Fourth, knowing or believing all these things, he recklessly supplied the card.
The proof of all this will be difficult and the case is probably a very weak one.
In a bail hearing today, the judge ordered him released on $10,000 bail. Given what we know of the facts of his case so far, the decision of the judge today was not surprising. However, what happened afterwards is surprising.
Despite being released on bail, the immigration minister decided to cancel Dr Haneef’s temporary work visa. This resulted in Dr Haneef being kept in custody, awaiting transfer to the immigration detention facility in Sydney. The only way he can avoid ending up in the detention centre is if he fails to post bail; thereby leaving himself remanded in custody (and therefore with more rights available to him, it seems).
Explaining this unexpected turn of events, the immigration minister Mr Andrews argued that Dr Haneef had failed a ‘character test’. He said:
Today I’ve exercised my powers … to cancel the visa of Dr Mohamed Haneef…Based on information and advice I have received from the Australian Federal Police, I reasonably suspect that Dr Haneef has had or has an association with persons involved in criminal conduct, namely terrorism…I’m satisfied the cancellation is in the national interest…I have a responsibility and a duty as minister under the (Migration) Act to turn my mind to the question of whether Dr Haneef passes the character test.
This is, of course, within the powers of the Immigration Minister. However, as the Sydney Morning Herald wrote:
In a strict legal sense, Mr Andrews’s decision is separate to the criminal proceedings under way in Brisbane. Haneef will join many other immigrants in Villawood whose visas have been cancelled on character grounds.
But in a practical sense, the visa cancellation is a mechanism that has allowed the Government to override the decision of the Brisbane magistrate and ensure that Haneef, whether guilty or not guilty of the terrorism charges, never tastes freedom again in Australia.
On this matter of character, Hedley Thomas, one of the journalists covering the case of for The Australian, commented, “in my view, the only person to fail a character test was Kevin Andrews.” Ouch.
Of course, about the only thing that isn’t surprising in this case is that the leader of the opposition Kevin Rudd agrees with it all.
For a more detailed discussion of the legal issues surrounding the case, this discussion [mp3] with John Dowd, QC makes interesting listening.
UPDATE: Larvatus Prodeo, Senator Andrew Bartlett, The Legal Soapbox, and Ambit Gambit all have interesting thoughts on the case and this most recent development.
UPDATE 2: After failing to reach bail conditions, Haneef has been transferred to a maximum security prison where he will be made to follow a plan that regulates “every aspect of his daily life”.