Due Process and the Presumption of Innocence should be considered sacred, without them the system is open to massive abuses.

You obviously have a much higher regard for Kevin Andrews than I do. I do not believe that he is continuing with this because he is seriously concerned over Dr Haneefs threat to this country, instead he cannot afford to let it go without doing damage to his governments reputation as "tough on national security".

It wasn't just Andrews who got it wrong. The AFP botched the case as well, possibly even misrepresenting woeful evidence to the minister in order to justify their ongoing detention of Dr Haneef.

I want to see a full inquiry into the whole affair. If the government is going to persist with "taking our rights so they can save them" then the public needs to be sure that the people in charge aren't a bunch of cowboys.

James,

I don't disagree with your sentiments regarding a full enquiry. Regardless of Haneef's guilt or innocence someone has stuffed up big time bringing the whole system into disrepute.

I simply make the point that the "presumption of innocence" is not and has never been an ABSOLUTE right, otherwise we would never incarcerate anyone before they were convicted of an offence. Our system has always allowed the incarceration of people prior to any trial, in various circumstances.

For example: When police arrest someone other than a convicted escapee, they do so only on suspicion, yet they are able to hold him or her, without trial, for a period prescribed by law. Whether that period is 24 hrs, 1 week, 6 months or 5 years is rightly a question for the ELECTED government.

Now please address the hypothetical question in my previous post. If faced with such a position how would you choose between following the legal processes or proactively protecting your country?

If you can't answer the question hypothetically, why do you aspire to put yourself in a position where that question could one day be put to you for real?

Kalin1,

Okay lets deal with your question. If I was ever in the position that ASIO would have to come to me with evidence obtained from Mi5 or the CIA about a plot to blow up a remote bomb and said "we have reasonable grounds based on this this and this evidence that this person is plotting to commit a terrorist act", then there would be no problem in arresting the person on charges relating to conspiracy to committing an act of terrorism.

On the other hand if ASIO came to me and said "We think this guys going to blow up a remote bomb based on evidence that we can't and won't show you, you'll just have to trust us" then I'm going to have issues with that.

James,

ASIO may or may not have been given hard evidence, but even if they had, and they could show you, much of it may well not be useable in court under the rules of evidence. This is almost certainly the situation the minister is in.

Even if Asio can give you nothing but the CIA and British Intelligence's assurance, you, as the hypothetical elected government official, still have to decide whether to do nothing for lack of legally useful evidence, or take action to ensure the safety of the public. The fact you "had issues" and balked at answering the question ought to show you the predicament the minister may well have faced with a case like Haneef.

I'm not saying the minister is right (and no I'm not a fan - I don't think I'd ever heard of this guy before) but how can anyone rationally be sure he's wrong without having detailed knowledge of all the unreported intelligence he is privy to.

Oh, and don't read too much into the fact some evidence against Haneef was fudgy. I knew a criminal defence lawyer years ago who got quite a few of his clients off because the evidence against them had been fudged by the Police. They weren't innocent, it was just that the cops were so keen to get his evil clients off the street they tried to put the trial beyond doubt and it backfired. This may well have been what happened in the Haneef case. Overzealous cops, who often feel they have one hand tied behind their backs by the legal system, go too far, and it back fires.

Now back to the hypothetical. Setting your "issues" aside, do you ignore ASIO's unsubstantiated warnings, or do you infringe poor Mr X's rights?

kalin1,

I'm not saying do nothing. There a range of perfectly valid actions that can be taken without the need to pull the guy in and lock him away without access to a lawyer for an indefinite period of time.

Options available include pulling Mr X in for questioning, searching his house (with a valid warrant) or place of work, placing Mr X under surveillance and so on. All of these options are available to police under normal procedures. If they turn up any evidence they believe is serious enough to warrant arresting Mr X then go for it.

Where the problem lies is in the new powers, searches without judicial warrants, secret evidence and secret trials (both of which refer to after the fact events). There is also a massive problem of a lack of oversight. There is no real mechanism for preventing abuses with these powers.

James,

ultimately, the integrity of our political/legal system is less dependant on the inflexibility of the system than on the integrity of the people in it. The Politicians, the Judiciary, the lawyers, the police, and the bureaucrats. As maligned as these people are, it is fundamental to a working democracy that we trust our elected leaders at least a little. Frankly, it's the whole point of a democracy. We vote for them to lead us!

Do I trust the Government to have unlimited rules to arrest and round up everyone they want to. No, but collectively they have always been in a position to grab those powers any time they want to. So we have to trust that they will continue to show such restraint in future. As it stands I am unaware of hundrends of random people being rounded up due to these new laws. Given the Government has all these powers so many people are worried about, it's curious they aren't using them. Is it possible they are being responsible?

Going back to the hypothetical: Your failure to arrest Mr X might, as ASIO have advised you, prove catastrophic. How would you sleep at night if our Mr X was to launch his attack and say, blow up a school bus. Would you simply blame the police you asked to watch him, or would you feel responsible. Even the possibility of it ought to make you sick.

When you decide whether to act on ASIO's advice, you have to weigh up the possibility you are detaining an innocent man (who happens to be suspected by ASIO), against the sickening possibility you will facilitate MASS murder if you do nothing.

If you hold him, at least you can find out more and release him later when you are sure. If you release him you may never get a second chance.

I don't envy the minister who has to make that call, but nor would I despise him whatever his decision.