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The Forum > Article Comments > A tale of three cases: reflections on rights protection > Comments

A tale of three cases: reflections on rights protection : Comments

By Stephen Keim, published 12/8/2008

The actions of governments in the fake war on terror have convinced many lawyers that a Human Rights Act is now needed in Australia

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Let's see if I've got this Hussain case right.

1. An Australian citizen travels overseas to study and on his return finds his passport has been cancelled by Alexander Downer.

2. He asks why and is told that ASIO has filed an adverse security assessment on him. ASIO declared that if Hussain travelled overseas he "might get involved" with people who would pose a risk to Australia's security or even to the security of a foreign country. There is no arrest and no charge are laid. He simply can't leave the country like every other Australian citizen.

3. When the citizen appeals to a Tribunal against the decision, the then attorney-general, Philip Ruddock, issues a certificate forbidding the disclosure of the ASIO assessment. His lawyers are told they can't see the material ASIO used to make its adverse finding. So one side did not get to see the other side’s evidence. Not only that, but Hussain's lawyers are told they can't be in the Tribunal to hear certain parts of the evidence.

4. The Tribunal says: "There is no evidence … to suggest that, if Mr Hussain is permitted to hold an Australian passport, he is likely to engage in military jihad type activities in Iraq. His relations with people who may hold extremist views appear innocent." http://www.smh.com.au/news/opinion/meanwhile-down-south-one-slips-past-the-keeper/2008/07/17/1216163057648.html?page=2

5. The Tribunal was in no position to test the evidence against Hussain.

6. Nevertheless, Hussain loses his appeal and his freedom to travel abroad.

7. The case goes to the full Federal Court which without being allowed to see the ASIO assessment and therefore unable to test the evidence, finds no fault with the Tribunal's behaviour presumably because it was not unlawful to do what ASIO and Ministers Downer and Ruddock did.

If those are the facts, we are in desperate need of a Charter of Rights to protect us against the secretive actions of ASIO and Ministers who set themselves up against democratic rights. It was Hussain this time. Who will be next?
Posted by Spikey, Tuesday, 12 August 2008 11:08:20 AM
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Aw Spikey - don't you know we don't need to have our rights explicitly protected by legislation, because ASIO never gets it wrong and Federal Ministers never make politically expedient decisions that trample all over the rights of citizens and/or residents?

Just ask Mohamed Haneef.
Posted by CJ Morgan, Tuesday, 12 August 2008 11:33:45 AM
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Haneef is the best known, but probably not the worst case. Try this:

http://www.news.com.au/story/0,23599,22748006-2,00.html

Its not the incidents themselves that worry me. They are bad, but perhaps there are times when they are justified. And if they aren't justified whoever overstepped the mark will be hammered by the voters - provided the electorate knows about them, and is free to discuss them. This is how democracy should work. You can't prevent people form making mistakes. You can just hold them accountable when they do.

But for this to happen there need to be a few unbending principles supporting our democracy. Freedom of speech. Transparency of government. Equality of everyone before the law (including ASIO). Right now these planks aren't part of our constitution. We appear to be relying on Judges reading them into existing laws. It says a lot for our Judges that they do this. But whatever is read in can be read out again by a different lot of Judges. It makes me very uncomfortable.
Posted by rstuart, Tuesday, 12 August 2008 12:28:24 PM
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ASIO ignored warning on three separate occasions by Jack Roche about the bali bomber, who had links to one of the september 11 WTC attacks "masterminds". Theoretically, ASIO could have prevented the WTC attacks had they investigated and passed on information about these calls. This is so serious it almost defies belief they are a trusted organisation.
Posted by Steel, Tuesday, 12 August 2008 2:18:31 PM
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I wonder if the author would like to see those who have created a fake war on 'climate change' charged for misleading the gullible!
Posted by runner, Tuesday, 12 August 2008 3:38:07 PM
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runner,

Be careful mate. ASIO might be plugged in to this!

On the other hand, YOU might be ASIO. Damn!
Posted by Spikey, Tuesday, 12 August 2008 3:49:43 PM
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Stephen Keim knows better than any in the legal profession what it means to defend a client who doesn't know the evidence against them. Had the "veil of secrecy" had not been drawn aside to reveal a complete absence of evidence, the fate of Dr Haneef may have been very different.

The right to freedom from arbitrary detention and the right to know what one is accused of if detained are fundamental freedoms that are too important to be left with the common law as sole defender.

As the situation stands, the courts are no match for our grossly inflated domestic security agency. Scott Parkin, Mohammed Sagar and Muhammad Faisal all face the same fate that befell Hussain when he was denied the right to know what ASIO accused him of doing, saying - or thinking - to warrant the cancellation of his passport.

With just a whisper from ASIO in the ear of Ruddock's successor, Robert McClelland, the right to a fair and open hearing could evaporate: http://www.scottparkin.org/actnow.php

Thanks to the National Security Information Act, introduced by the Howard Government with the Opposition's support, the Attorney General retains the power to issue a "conclusive certificate" preventing the appearance of evidence or witnesses in both civil and criminal cases on "national security" grounds.

In practice, this means that a civil claim against ASIO cannot ever succeed, so long as the Attorney General believes whatever claims ASIO chooses to make about the dire threat to national security posed by the orderly turning of the wheels of justice. Unless, of course, ASIO deigns to tell you what you are supposed to have done out of the goodness of its heart, if indeed it has one.

As for Haneef - well, he can just thank his lucky stars that even ASIO chose to keep its paws out that particular train wreck. As the three-year cases of Parkin, Sagar and Faisal illustrate, anyone who loses, or is refused, a visa on ASIO's say so faces a long - and potentially futile - wait for justice.
Posted by FoSP, Tuesday, 12 August 2008 8:11:28 PM
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The author although arguing for a bill of rights really has demonstrated the need for a bill of government. Such a bill would limit the rights and powers of government so situations illustrated do not occur again. Historically bill of rights where granted from sovereigns under threat from parliament as sovereigns where the major threat to the people. The major threat to the people is now government itself, As the people are theoretically sovereign in our democracy then it should be them telling the government what they can and cannot do not the other way around as in fascist states. If all rights are held by the people why should we allow a government the servant of the people restrict them, should we not draw a line and say beyond this point you cannot pass.
Posted by RustyFox, Tuesday, 12 August 2008 11:04:36 PM
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I agree with most of the comments above and our ultimate goal in a social democracy should be transparency and accountability.

If indeed the information against Hussain could not be released because of national security considerations why not allow an agency like IGIS to investigate as an independent body to ascertain the validity of ASIO's findings against Hussain. IGIS findings then could be presented to the court without revealing other sensitive information. Otherwise 'in the interests of national security' will become the mantra to avoid taking responsibility for mistakes and mis-assessments.

There might be instances where revelation of findings might impede a current investigation into a terrorist group but there should be a security cleared body like IGIS that can provide checks and balances separate to national security agencies like ASIO and ASIS. Or a parliamentary committee set up to review cases like this as they arise.

I think part of the problem is that when agencies like the AFP or ASIO receive information about a person of interest, the investigation should always proceed on the presumption of innocence until all the facts are known as with the mobile phone debacle with Haneef.
Posted by pelican, Wednesday, 13 August 2008 9:36:14 AM
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who will be next Spikey asks?

Well I hope its the Saudi bloke I met a while back who told me with regard to verse 29 of the 9th chapter of the Quran.. (fight them who do not believe).. that the 'Jihad will continue to the end of the age"..

yep..I surely hope it is him.

I also know...that if certain means of surveillance were disclosed to suspects.. it would jeapordize future effectiveness of that surveillance..I know because I made part of the equipment.

There is no way known...that such things can be revealed to the public.
Posted by Polycarp, Wednesday, 13 August 2008 11:29:03 AM
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Complaining (whining) about how the case was handled by Asio is probably valid.

But suggesting that this bloke got off on anything other than a technicality is absurd!

The evidence..

{When Mr Ul-Haque returned to Australia, Customs officers searched his bags and found books and a letter by him addressed to his family in which he stated that he was going to Kashmir for "jihad" and that he intended to join LeT.}

Says it all. The man was planning to join a terrorist organization.. by his own unforced confession.. in a personal letter to his mother.
What more does any reasonable person need?

That alone is game over except for some smart alec lawyer who cares nothing about the mans plans..just whether he can get him off.

How many LIVES would he have taken if he had succeeded in joining LET?

Nothing makes me quite as sick as those who rejoice at the mistrial or freedom of a man who by his own confession plans to be a terrorist.

They have simply taken their next 'fix' of anti security drugs until the high wears off.. let's hope that their children or loved one's are not among those who may one day be dismembered in a blast of ammonium nitrate and ball bearings as they watch the footy...

But based on the amoral evil joy they derive from such things.. given a choice of my loved one's or their's.. I'd prefer it was theirs.
Then they might feel the consquences of their mindless, infantile and unsound actions..
Posted by Polycarp, Wednesday, 13 August 2008 11:42:41 AM
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What a nice little earner the GWOT has turned out to be for sly-boys everywhere, including our own indigenous ones - including some of the sly-boys in the AFP obviously.

There are no rules, save those you make up as you go.

No-one may know what's going on in those foetid little brains. Oh, it's a biiiiiig secret!

Obviously, such an arrangement is the worst breach of security that a country can have. The ability to "backdoor" any old sort of neocon muck straight into the twitchy minds of secret policemen (who have garnered what is left of privacy for themselves alone) is total insanity.

We have quite literally put the inmates in charge of the asylum.

This cannot be allowed to stand. The very roots of this weed must be revealed, because they die when exposed to the sunlight.

Mind you, Kennedy said he was going to break the CIA into a thousand pieces, and we all know what happened to him shortly thereafter.

- so, my point is - time runs short -
Posted by Chris Shaw, Carisbrook 3464, Wednesday, 13 August 2008 11:55:50 AM
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PolyBOA answers my question, "Who will be next?" with this gem: "Well I hope its the Saudi bloke I met a while back who told me with regard to verse 29 of the 9th chapter of the Quran.. (fight them who do not believe).. that the 'Jihad will continue to the end of the age."

All the evidence he needs that a person should be locked up is that he is a religious nutter. So watch it David, there could be a cell for you to.

Polly Carper probably breaks the law by telling us breathlessly that ASIO can't reveal "...certain means of surveillance... [because] it would jeapordize [sic] future effectiveness of that surveillance..I know because I made part of the equipment."

The mind boggles at people live Polly having State secrets like that and, with the brain the size of a flea, thinks he's competent to jump from being a technician to being a judge.

It's OK for our self-styled guru to be able to know top secret stuff, but "There is no way known...that such things can be revealed to the public".
Posted by Spikey, Wednesday, 13 August 2008 2:24:17 PM
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The prejudices of the author are manifest from the moment one reads the short snippet of the title which refers to the "fake war on terrorism".

"Fake war on Terror"? Thats a slogan straight from the green socialist basketweavers weekly. You just know with a start like that there's only rubbish to come.

I wonder how FAKE you imagine that the passengers on the jets flown into the towers at 700KMH thought it was? How about the victims of 7/7 eviscerated by chunks of bus metal moving at a couple of thousand metres a second? I really can't imagine they thought that was being faked?

Its funny that the left, who have been in bed with so many totalitarian regimes and place the importance of "community" above the importance of the individual, can find the time to care about the individual at the expense of the security of the majority in this case.

Steel says >> "Theoretically, ASIO could have prevented the WTC attacks had they investigated and passed on information about these calls"

Mate do you still believe in the tooth fairy?

You don't have the first clue about security issues. ASIO is a secret organisations which funnily enough does much of its work secretly. They don't advertise their successes. So all you hear about is their failures. I really don't know where it is you get the gall to criticise the job they are doing when you have NO IDEA whatsoever what the real circumstances of their day to day work is.

Why don't you move to some socialist paradise somewhere where they do things your way? Oh wait on, I know why. If you complained there like you complain here they'd have you shot or beheaded without trial.
Posted by Paul.L, Wednesday, 13 August 2008 3:43:48 PM
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I say there is NOT ONE secret that the general public could not deal with.

There is not one actionable FACT that the general population could not take on board, and deal with better than any combination of spooks, sly-boys and secret-mongers.

Any spook will tell you that 99% of actionable intelligence is already out there in the public domain anyway.

Go ahead and give me ONE example (since WWII) of the noble secret-mongers actually making the world a better place. Don't give me any of that old flannel about protecting sources and methods - it won't wash.

Whenever secret activities accidently make it out into the fresh air, we are invariably startled to learn that it is our OWN spooks who helped to shoot us in the foot.

Because the whole worldwide ball of wax has become a creature of unscrupulous politicians and their corporate owners - and only dark threats put the best food on a spook's table.

No-one is cleverer than all of us.
No-one is tougher than all of us.
No-one is more ethical, wiser, far-seeing, all-knowing than all of us together.

- that's the big secret they don't want us to discover -
Posted by Chris Shaw, Carisbrook 3464, Wednesday, 13 August 2008 4:08:22 PM
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Paul.L <<Its funny that the left, who have been in bed with so many totalitarian regimes and place the importance of "community" above the importance of the individual, can find the time to care about the individual at the expense of the security of the majority in this case.>>

Now that's a curious contradiction. There are two possible immediate explanations of the apparent logical inconsistency.

1. The 'left' is confused and doesn't know whether it wants to be 'in bed' with totalitarian regimes or wants to be 'in bed' with individuals.

OR

2. Paul L is confused about 'the left' and doesn't understand what he is observing. 'The left' is an ill-defined and hackneyed term that lazy or dim-witted people trot out whenever when they find their own conservative position challenged. The political world doesn't divide neatly into two simple categories - 'left' and 'right' except in the most simple minds.

In fact, there could be a third or fourth explanation (or even more) of the apparent contradiction that Paul L thinks he sees:

3. That both community and the individual are valued by lots of people and there is no contradiction because these are not competing positions.

4. That caring for the individual is a crucial component of caring for the security of the majority. If we are silent when an individual is imprisoned without due process, we endanger the whole of a society.

<<ASIO is a secret organisations which funnily enough does much of its work secretly. They don't advertise their successes.>> So how do we know if they are doing the job we pay them to do? Should they be doing an even better job? Don't know. We can't know. It's a secret.

<<Why don't you move to some socialist paradise somewhere where they do things your way?>> Some can't move. Their passports have been taken away.
Posted by Spikey, Wednesday, 13 August 2008 6:23:49 PM
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