Peter A Clarke

Kevin Andrews was a member of the Melbourne Bar before he became the federal member for Menzies upon Neil Brown’s departure.  Neil Brown is back to being a barrister.  A nice switch. I don’t know how good an advocate Andrews was as he was before my time. By all accounts he was sound, if something of a journeyman.  Anecdotedly he seemed to be part of that class of barristers who are more focused on getting preselection than developing a full blown career at the bar.  The bar has always provided a steady stream of candidates for political office, with Latham, Whitlam, Menzies, Williams, Turnball (early on), Evatt just to name a few. 

Andrews is admitted as a barrister and solicitor and, like most legal practitioners in Victoria, signed the Supreme Court roll.  When practising he is an officer of the court.  I think he remains so even as a Minister.  An officer of the court has an overriding obligation not to mislead a court.  He should have informed the DPP that he was contemplating revoking Haneef’s visa in the event of bail being granted.  That is a material fact which should be put before the Magistrate.  His behaviour in revoking Haneef’s visa an hour or so after Haneef obtained bail is another clear abuse of the process.  

In his subsequent interviews he was at best disembelling.  He should be struck off. On last night’s 7.30 report he said:

KEVIN ANDREWS: What the Act requires of me is that I have a reasonable suspicion that Dr Haneef had an association, has or has had an association, with persons who have been engaged in criminal conduct.
How can evidence that Haneef’s contact, being giving a sim card to a cousin constitute a, presumably, criminal association.  Kerry O’Brien tried to tease out the difference between criminal and innocent association without too much success.  Andrew’s stuck by his script.  And how!

An interesting line of enquiry was:  

KERRY O’BRIEN: Okay. The Federal Police were also given every opportunity to convince the magistrate hearing the case against Dr Haneef that he should be held in custody, and the magistrate rejected their arguments. Have federal police given you information that they haven’t given to the magistrate?

KEVIN ANDREWS: I wasn’t in the courts, I’m not a party to the information provided to the magistrate. But the test which I have to apply for myself is a simple test. And that is, is there evidence which is in this case provided by the Federal Police, and that evidence reveals or establishes in my mind a reasonable suspicion of association with people engaged in criminal conduct?
Here is the rub.  While Andrews wasn’t in court does anybody seriously suggest that he wasn’t given a briefing of what had happened. He made his decision an hour or so after the decision. That is a coincidence is it!  Of course he would have received a full briefing even if it was not his portfolio responsibility. 

KEVIN ANDREWS: My duty is what is set out in the migration legislation and I’ve acted according to that and my belief is given the information I had available to me, that it was not appropriate that Dr Haneef continue to move freely within the Australian community.
Here is were Andrews just plainly misrepresents what happened in court.  He knew or ought to have known that the condition of bail was Haneef reporting to police three times a week.  He has no passport and would have been placed under surveillance. 
KERRY O’BRIEN: Did that extra advice come to you only after the magistrate had agreed to release Dr Haneef?

KEVIN ANDREWS: I’ve received advice over the last few days from the Federal Police about this matter.
Andrews has the information and just sits on it. 
KERRY O’BRIEN: Had you formed this judgment before the magistrate…

KEVIN ANDREWS: I finally made a decision about 1pm today. I received the last advice about this matter about an hour or so earlier today.
What new material came to his attention in the time between the decision to grant bail being made and 1pm.  Further documents produced, further admissions made?  If so why didn’t the prosecutor take that to the magistrate.  The advice was probably being told of the decision.
KERRY O’BRIEN: Do you agree that the magistrate’s decision against strong arguments by the DPP using information from the Federal Police, that the magistrate had essentially rejected the thrust of that argument to keep Dr Haneef in custody, do you agree that there was potential for the magistrate’s decision to have embarrassed the Government?

KEVIN ANDREWS: These are parallel inquiries, if I can put it that way.
Lame, disembelling lies.

KEVIN ANDREWS: Kerry, I am acting in the national interest and about matters that go to national security. I think if people think for a moment about the kind of activities that occurred in the UK, cars set up to be detonated outside busy nightclubs, cars driven into the foyer of a major regional airport in the UK with the intention of being detonated and nail bombs going off all over the place. These are the most grave of allegations being made against people and I have a responsibility to act in the national interest and for the national security.
And what evidence is there to support that sort of damning of a man presumed innocent.  Nothing of course.  How mendacious can you get.

KERRY O’BRIEN: But these allegations are not being made against Dr Haneef. I’m sure in fairness to him, you’ll acknowledge that right now?

All in all an utterly discreditable performance by an inadequate minister and someone who should not be allowed to practice law again.

Kafka, eat your heart out. The Federal Government has pulled one of its most outrageous abuses of the legal process. 

Haneef had to face a reverse onus in getting bail on a terrorist related charge.  He got it. Then in one of the shiftiest slight of hands the Minister for Immigration cancels his visa.  No visa, no legal basis to walk a free man, no legal basis detention.  Until when?  According to the Sydney Morning Herald he is lock up pending the hearing of his charges. 

According to the ABC site

Mr Andrews says he has used his powers under the Migration Act to cancel Haneef’s visa because he has failed the character test.

“In particular, a person fails the character test if – and I quote – ‘the person has or has had an association with someone else or with a group or organisation whom the Minister reasonably suspects has been involved has been or is involved in criminal conduct’,” he said.

Mr Andrews says Haneef will remain in immigration detention while the legal proceedings against him continue.

Such sanctimonious hum bug is stench in the nostrils of anyone who has any sense of justice and fairness.  If that isn’t an abuse of process nothing is.  Why new material was before the Minister to cancel the visa that he was aware of pre the bail application?  Even the stated reason is bogus.  What evidence is there that there was an association with a group or organisation that has been involved in terrorist activities?  The evidence seems to be that he gave a phone card to a person, not an organsiation.  Is that an association?  Please! 

Now Haneef is in immigration detention until when? Until he is deported perhaps?  No until he is brought to trial.  And that gets back to the bail application.  He is on bail……but in detention. 

I hope Haneef’s lawyers are on winged foot as they race to the Federal Court to get Andrew’s decision reviewed.

And through the looking glass we go………..