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Last Updated: Thursday, 19 July 2007, 10:56 GMT 11:56 UK
Australia terror laws under scrutiny
By Nick Bryant
BBC News, Sydney

Queensland's Gold Coast has twice this year been the unlikely setting for stories that have reverberated around the globe.

Protest outside the Immigration Department in Sydney - 18/07/07
Dr Haneef's detention has sparked some fierce protests

The first came in late February, when Dr Alan Greenspan, the former chairman of the US Federal Reserve, suggested to a Gold Coast business summit that the American economy might be "moving into a recession" - four words that wiped 416 points off the Dow Jones index.

The second featured the more diminutive figure of Dr Mohammed Haneef, the 27-year-old Indian doctor charged in connection with the failed UK bomb attacks.

After arriving in Australia last September, he worked at the Gold Coast Hospital and lived in an apartment complex nearby, complete with palm trees and a pool.

Just as Dr Greenspan's comments focused global attention on the resilience of the US economy, Dr Haneef's arrest, questioning, charge and now immigration detention have put Australia's new terror laws under close international and domestic scrutiny.

This is a cynical exercise of power, a slap in the face to the judiciary and a dangerous precedent
Stephen Estcourt
President of the Australian Bar Association

The announcement on Monday from Australia's immigration minister, Kevin Andrews - that Dr Haneef would remain in detention despite being granted bail by a magistrate in Brisbane - fuelled an already fiery debate.

Angry that magistrate Jacqui Payne did not attach the same seriousness to the charge of providing resources to a terrorist organisation as the Australian Federal Police do, Mr Andrews announced that Dr Haneef had failed the "character test" laid down under immigration laws, and would continue to be held behind bars, whether he posted bail or not.

The move was viewed by civil liberties and legal groups not only as a threat to the independence of the courts, but as highly prejudicial to Dr Haneef's future trial.

Similar concerns have been voiced by the Indian government, which earlier this week summoned John McCarthy, Australia's High Commissioner in Delhi, to the ministry of external affairs.

"This is a cynical exercise of power, a slap in the face to the judiciary and a dangerous precedent," was how Stephen Estcourt, the President of the Australian Bar Association, put it to BBC News, making little attempt to conceal his disgust.

Emblematic case

Australia is grappling with that great post-9/11 dilemma - how to balance security against liberty.

Headlines this week from two of the country's leading broadsheets neatly capture the mood: "Bailed then Jailed: Justice in the new age of terrorism," from the Sydney Morning Herald, and "Excessive anti-terrorist zeal puts rule of law at risk" from The Australian.

Mohammed Haneef, court sketch 16 July 2007
Dr Haneef denies the charges against him

On 28 September 2001, just 17 days after the attacks of 9/11, the Howard government announced an overhaul to its anti-terror laws.

Since then, legislation has been amended to create new terrorist offences and trial procedures, and to give police and intelligence officers broader investigative powers.

More controversially, perhaps, it has also brought in new rules regarding control orders and preventative detention.

Because this is by far the most high profile instance where the laws have been practically applied, Dr Haneef's case has become emblematic.

He was ultimately held for 12 days without being charged, which included long stretches of what is called "dead time" - a period during which he could be held without questioning.

To extend periods of detention and "dead time", the Australian Federal Police had to keep on seeking magisterial approval - which was always granted.

These legal manoeuvrings were played out in front of a national television audience, with the lawyers besieged by reporters and camera crews as soon as they stepped in or out of the court.

'Flawed' laws

This legal to-ing and fro-ing, claims Clive Williams, a counter-terrorism expert at Macquarie University, has actually undermined public confidence in the anti-terror laws.

Australia needs anti-terror laws. But they have to be more clearly defined and not so broad
Claire Macken
Deakin University

"Every time they went to court, there was all this publicity, and that put enormous pressure on the police. In Britain it's much easier, when suspects just disappear into Paddington Green [police station in London]. The Australian system is a real pig's ear."

Mr Williams has called for a strengthening of Australia's anti-terror laws based on the British model - the power of 28 days of pre-charge detention.

That would allow the Australian Federal Police to patiently sift through the evidence.

In the Haneef case, that documentation, retrieved from searches of his top-floor apartment and place of work, could reportedly fill 36,000 file cabinets.

Having to rely on immigration laws to keep Dr Haneef detained, says Mr Williams, is "outlandish" and has exposed the flaws in the current laws.

Claire Macken, a legal scholar from Deakin University, is sympathetic to a 28-day detention period, because she says it would ultimately be more humane to the suspect.

"If you know you are going to be held for 28 days, you can prepare yourself mentally, and that protects your human rights. Part of the problem in the Haneef case is that he never knew what was going to happen and the process was so unpredictable," she says.

Overall, however, she wants the terror measures amended to protect the integrity of the law and to uphold public confidence.

"For our national consciousness and to show we're serious, Australia needs anti-terror laws," she says. "But they have to be more clearly defined and not so broad."


SEE ALSO
Haneef lawyers appeal detention
18 Jul 07 |  Asia-Pacific
Haneef 'will remain behind bars'
16 Jul 07 |  Asia-Pacific
India concern over Haneef custody
17 Jul 07 |  South Asia
Indian doctor in UK plot charge
14 Jul 07 |  Asia-Pacific
Red tape holds up UK terror probe
12 Jul 07 |  South Asia

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