civil liberties: December 2007 Archives

Today's Sydney Morning Herald has an editorial piece on the complaint against Justice Adams which I blogged about yesterday.  It reads, in part:

AUSTRALIA'S security establishment, having been weighed in the balance and found wanting, now wants to place its heavy hand on one side of the balance, to tilt it in its favour. That is the conclusion Australians would be entitled to draw from yesterday's Herald report that the head of the federal Attorney-General's Department has complained to the NSW Judicial Commission about Justice Michael Adams's verdict in the case of Izhar ul-Haque.

As we have already stated, the decision of Justice Adams of the NSW Supreme Court in the ul-Haque case showed the legal system operating as intended. His judgment revealed that Australian Security Intelligence Organisation was using the charges against Mr ul-Haque as a threat to induce him to become their spy. Justice Adams was rightly scathing about the illegality of the ASIO agents' behaviour during Mr ul-Haque's arrest and interrogation. It appears that His Honour's decision, and the clarity of his views, forcefully expressed, about their cavalier approach to due process, have perturbed the security establishment - not just ASIO but also the Federal Police and, it appears, senior bureaucrats in the Attorney-General's Department, which oversees both agencies.

They appear, though, not to be worried, as they should be, by content of the judge's criticisms, but by the fact that he dared to make them at all. Instead of insisting Australia's security agencies observe the law, the head of the Attorney-General's Department, Robert Cornall, is seeking to punish the judge who pointed out how they had broken it. Is this an attempt to cow the judiciary, in security-related cases, into toeing the line and suspending the rules in the interest of national security? It would not be surprising if it were. The Commissioner of the Federal Police, Mick Keelty, has already suggested courts need to change their attitude to evidence if crimes, particularly acts of terrorism, are to be prevented - rather than punished after they have happened.

The Sydney Morning Herald reports that 'Australia's top legal bureaucrat', the secretary of the Attorney-General's Department, had made a formal complaint to the Judicial Commission of NSW against Justice Michael Adams.

Adams J is the judge who previously held that two ASIO agents had unlawfully kidnapped and falsely imprisoned a young Sydney medical student who was suspected of terrorism offences.

This comes after the head of ASIO publicly defended the behavior of the officers involved 'by saying the agency has had to adapt to new laws after September 11.'  Stuff and nonsense.  Adams J held that the ASIO officers knew what they were doing was illegal and they did it anyway.

I'm not surprised that O'Sullivan is defending the jackbooted thugs he employs, but I am surprised that he hasn't come up with some more plausible excuses.  Playing the 9/11 card is just weak.

The Sydney Morning Herald reports that recently declassified documents show that former FBI Director J Edgar Hoover submitted a plan to the White House, 12 days after the Korean war began, to suspend habeas corpus and arrest 12,000 people whom he suspected of disloyalty, and put them in 'permanent detention' in military prisons.

97% of the people on the list were American citizens.  The arrests were to be proclaimed by then-president Truman to be necessary to 'protect the country against treason, espionage and sabotage.'

Hoover obviously wasn't a big fan of the bill of rights.

The Full Court of the Federal Court of Australia handed down their judgment on the Haneef appeal this morning -- Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 -- and dismissed the government's appeal with costs.

Quoting from the Court-provided summary of the judgment:

The Migration Act specifies various circumstances under which a person does not pass the character test. They include that a person has or has had "an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct".

The Minister suspected that Dr Haneef did not pass the character test because of his "association" with the Ahmeds. [Haneef's second cousins]

Justice Spender considered that the Minister had misinterpreted the character test and had applied a test that was too wide and could encompass links that could not, in his Honour's view, conceivably have had any bearing on the visa holder's character.

On the Minister's appeal to the Full Court the central issue was, again, the scope of "association" and whether the Minister had applied the incorrect test.

It was common ground on the appeal that there had to be some limits on the scope of "association", but there was disagreement between the parties as to what those limits were. The Minister argued for a wide definition, relying upon an earlier decision of a single judge of the Federal Court, and Dr Haneef's counsel argued for a narrower one.

Applying the principles of the common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected, the Full Court has agreed with Justice Spender that a narrower interpretation of "association" than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.

In a unanimous judgment, the Full Court has concluded that the "association" to which s 501(6)(b) of the Migration Act refers is one involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated. The association must be such as to have some bearing upon the person's character.