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Draft Template Report of the Inquiry into the Case of Dr Mohamed Haneef Volume One November 2008 © Commonwealth of Australia 2008 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Attorney General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or posted at http://www.ag.gov.au/cca ISBN Volume One 1 921241 64 0 (printed) 1 921241 66 7 (on-line) Volume Two 1 921241 65 9 (printed) This report is available online at: http://www.haneefcaseinquiry.gov.au/ Clarke Inquiry into the Case of Dr Mohamed Haneef 21 November 2008 The Hon. Robert McClelland MP Attorney-General Parliament House Canberra ACT 2600 Dear Attorney-General In accordance with the terms of your letter dated 13 March 2008, I have the honour to present the report of my inquiry into the case of Dr Mohamed Haneef. The report consists of two volumes. In Volume One I deal fully with the matters covered by my terms of reference, and I make a number of recommendations arising from those matters. In describing the events of the case, I made every effort to avoid including any material that might be judged a threat to national security information or continuing operations or might jeopardise any current trials. It is my hope that you will be able to release this volume to the public. Volume Two contains supplementary material that provides greater detail and analysis of the events I examined and includes references to sensitive or classified material. It might be that this material cannot be published at present. As you are aware, trials that were pending in the United Kingdom during the time I was conducting this Inquiry greatly influenced the course of my work. Much of the material relating to Dr Haneef’s experience came from the UK Metropolitan Police Service, which did not agree to unfettered use of the material for the Inquiry’s purposes. I am not critical of the approach the UK authorities took: I understand the extreme sensitivity associated with publishing information that might in some way put the trials at risk. Although I was mindful of these concerns, inevitably there are direct and indirect references in the report to information furnished by the Metropolitan Police Service. Much of this material, however, was already in the public domain before the Inquiry began and has now been released as part of the trials in progress. I did not seek clearance of any part of my report from the UK authorities. Yours faithfully MJ Clarke QC Computer Associates House, 10 National Circuit, Barton ACT 2600 Clarke Inquiry PO Box 5365 Kingston ACT 2604 t. 02 6270 5844 f.02 6270 5860 e. [email protected] w. www.haneefcaseinquiry.gov.au Contents Overview and recommendations................................................................................vii Overview ..........................................................................................................vii Recommendations............................................................................................ xi 1 The Inquiry.........................................................................................................1 1.1 Independence.......................................................................................1 1.2 Establishment of the Inquiry..............................................................2 1.3 The preliminary hearing.....................................................................2 1.4 Submissions to the Inquiry.................................................................3 1.5 Production of documents ...................................................................4 1.6 Material related to pending trials in the United Kingdom...............................................................................................6 1.7 Witnesses..............................................................................................9 1.8 Consultation.......................................................................................12 1.9 Constitution of the Inquiry ..............................................................14 1.10 Costs....................................................................................................17 1.11 Acknowledgments ............................................................................17 2 Departments and agencies: roles and responsibilities .............................19 2.1 The Australian Federal Police..........................................................19 2.2 The Queensland Police Service........................................................21 2.3 The Office of the Commonwealth Director of Public Prosecutions .......................................................................................23 2.4 The Department of Immigration and Citizenship ........................25 2.5 The Australian Intelligence Community........................................26 2.6 The Department of the Prime Minister and Cabinet ....................33 2.7 The Attorney-General’s Department ..............................................34 2.8 Other organisations...........................................................................36 3 The case of Dr Mohamed Haneef.................................................................45 3.1 The arrest............................................................................................45 3.2 Detention ............................................................................................54 Report of the Inquiry into the Case of Dr Mohamed Haneef v 3.3 The AFP investigation...................................................................... 81 3.4 The security intelligence investigation......................................... 102 3.5 Charging, prosecution and release ............................................... 132 3.6 Visa cancellation.............................................................................. 162 4 The administrative and policy response................................................... 207 4.1 Overview.......................................................................................... 207 4.2 The counter-terrorism administrative framework ..................... 208 4.3 Whole-of-government action......................................................... 209 4.4 Meetings and teleconferences ....................................................... 216 4.5 Was there government interference or influence?...................... 227 4.6 Were the government meetings effective? .................................. 228 5 Deficiencies in the legislation.................................................................... 231 5.1 The perceived inconsistency between ss. 3W(2)(b)(i) and 23CA(2)(b) of the Crimes Act ........................................................ 231 5.2 The reasonable suspicion or belief thresholds ............................ 233 5.3 Resolving the perceived inconsistency ........................................ 234 5.4 Detention under the Crimes Act................................................... 238 5.5 Procedural fairness ......................................................................... 251 5.6 The counter-terrorism criminal offences...................................... 256 6 Cooperation, coordination and interoperability ..................................... 261 6.1 Laying charges for terrorism offences.......................................... 261 6.2 Visa cancellation.............................................................................. 266 6.3 The AFP’s further five recommendations.................................... 277 Appendix A Terms of reference ......................................................................... 287 Appendix B Administration of the Inquiry..................................................... 289 Appendix C Submissions.................................................................................... 293 Appendix D Witnesses and legal representatives........................................... 294 Appendix E Statements....................................................................................... 296 Shortened forms........................................................................................................... 298 vi Report of the Inquiry into the Case of Dr Mohamed Haneef Overview and recommendations Overview It was in the early hours of 2 July 2007 that the Australian Federal Police first became aware of the probable presence of Dr Mohamed Haneef in Australia and his possible involvement in the terrorist incidents in the United Kingdom on 29 and 30 June 2007. From 2 July until Dr Haneef was charged, a large amount of the information on which the AFP relied came from the United Kingdom. During the investigation, that information was supplemented by information flowing from investigations the AFP and the Queensland Police Service carried out, either themselves or in association with agencies in the Australian Intelligence Community. Nonetheless, reliance on information from overseas bedevilled the investigation. At the outset it must be said that this Inquiry was concerned with the operations of the relevant Australian departments and agencies during July 2007. It was not an investigation into whether Dr Haneef was guilty or innocent. He is, however, entitled to a presumption of innocence. Quite
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