The atrocious treatment of Dr Mohamed Haneef has drawn much comment on the fairness of our anti-terror laws and the performance of Immigration Minister Kevin Andrews. Less attention has been paid to the inherent unfairness of provisions of the Migration Act which so easily enable precisely the type of injustices meted out to Dr Haneef.

Minister Andrews’ management of the migration aspects of this case have been nothing short of appalling. However, he is far from the first government minister to use excessive, unaccountable powers for political purposes while publicly smearing the victim of his actions. It will require a change in the Migration Act, rather than a change in the Minister, to prevent this from happening again.

The simple fact is that the Minister’s powers under the Act provide little in the way of checks and balances, and the provisions relating to character and mandatory detention and character are deeply flawed and open to abuse.

Whilst the Haneef case has been cast in the light of our nation’s response to terrorism, the relevant provisions of the Migration Act go back to the 1990s, well before the days of the so-called “war on terror”. While I don’t approve of every aspect of our terror laws or the way they were applied in the Haneef case, the simple fact is that they provided more scope for justice and fairness than the migration law. At least the federal Police had to keep applying to keep Haneef detained without charge, and at least he had the right to apply for bail when he was charged.

Under the Migration Act, Haneef’s freedom was denied automatically and indefinitely the moment his visa was cancelled, due to the mandatory detention provisions of the law. He had no scope to apply for bail and no right to see the evidence used to justify the decision; even the court appeal he can seek against the Minister’s decision can only review the lawfulness of it, not the actual merits of the decisions.

Mandatory detention – allowing people to be jailed indefinitely without charge or trial – was introduced into the Migration Act in 1992. It was justified as necessary to ‘protect’ us against asylum seekers, who are among the most harmless and vulnerable people on the planet. The introduction of draconian ministerial powers relating to character provisions occurred in 1998 when the government got annoyed that a decision to cancel a visa had been overturned by the courts. The law was changed to give them extraordinarily wide powers with very limited scope for review.

Both changes were opposed by the Democrats in the Senate but supported by both major parties, despite warnings at the time that increasing the power and discretion of ministers increases the prospects of abuse and injustice.

Any inquiry into the conduct of the case against Dr Haneef would be remiss if it did not include a thorough examination and revision of these aspects of migration law.

Peter Fray

Inoculate yourself against the spin

Get Crikey for just $1 a week and support our journalists’ important work of uncovering the hypocrisies that infest our corridors of power.

If you haven’t joined us yet, subscribe today to get your first 12 weeks for $12 and get the journalism you need to navigate the spin.

Peter Fray
Editor-in-chief of Crikey