Does former Gold Coast doctor Mohamed Haneef have grounds to bring a civil action based on abuse of power on the part of the Federal Department of Immigration, the AFP and former Howard government ministers like Kevin Andrews?

Given what we now know about the conduct of the authorities after the arrest of Dr Haneef at Brisbane airport on July 2 last year on suspicion of being connected with terrorist attacks in the UK, that possibility cannot be ruled out.

The technical term for a cause of action brought by someone claiming abuse of power is misfeasance in public office. While the law in this area has been described as still being in a state of development, a person who brings such an action has to show that the public official who makes a decision or takes action against them has done so for an ulterior motive, namely to harm the person bringing the action.

As Lord Steyn, one of the UK’s leading judges in recent years has put it, “there must be malice in the exercise of the power. In other words, the power must be exercised for an ulterior purpose, with the intention of injuring the plaintiff. It is sufficient for that purpose if the public officer acts with knowledge that he has no power so to act or recklessly disregarding whether he has such power and knowing that his or her action will injure the plaintiff or a class of people which includes the plaintiff or if there is reckless indifference to the probability of causing injury to the plaintiff.”

Now let’s apply this to the Haneef case. In a paper delivered this week to a human rights conference in Melbourne, Dr Haneef’s barrister Stephen Keim SC chronicled the errors, misinformation and misleading statements made by investigators and the federal government in the arrest and charging of Dr Haneef. Keim says that there is “evidence that the most exculpatory information…was either ignored or suppressed.” And, he says, other evidence was used selectively.

We also know that the Department of Prime Minister and Cabinet, and one assumes Mr Howard’s office, was involved in the Haneef matter as early as two days after he was arrested. And we know that the Department of Immigration and Kevin Andrews’ office were looking at detaining Dr Haneef if he was granted bail.

The picture which is emerging is that the Howard government was looking to leverage as much political mileage out of Dr Haneef’s arrest and detention as possible.

In other words, political considerations were dominating the treatment of Dr Haneef. Does this mean that John Howard, Kevin Andrews, the Department of Immigration and even the AFP were exercising power for an ulterior motive? Did they either intentionally or recklessly exceed their power for the purpose of gaining political advantage?

There is no doubt that Dr Haneef suffered real harm as a result of the decision to arrest, detain and charge him with terrorism offences. He lost his job as a doctor in a Gold Coast hospital and was publicly humiliated by being called a “terrorist”.

No doubt John Howard, Kevin Andrews and other federal government officials will be hoping that a misfeasance of public office claim is not in the wings because they would be held personally liable for any damage caused to Dr Haneef by them.

Peter Fray

Help us keep up the fight

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