Tuesday, December 23, 2008

Clarke Inquiry

This has been copied from another site. It is to do with Kevin Andrews, who was appallingly treated by the press.
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A decision in the national interest
No improper purpose! No conspiracy!

“The minister was faced with considering a question that had been under discussion among officers since 3 or 4 July, and against the background of community concern about the spectre of terrorism in which – wrongly as it turned out – Dr Haneef was implicated. The most likely reason the Minister acted to cancel Dr Haneef’s visa is that he had grave suspicions about Dr Haneef as a result of the material put before him and he genuinely believed the community wanted him to act decisively.”
- The Hon John Clarke QC, page 196

For the past 18 months, Dr Haneef’s lawyers and some other commentators have suggested that in cancelling the temporary work visa of Dr Haneef, I had acted improperly as part of a government conspiracy to detain him.

These suggestions have been categorically rejected by the Clarke Inquiry.

Improper motive

• “I gave the matter much consideration, and I am satisfied on the material before the Inquiry there was no improper arrangement between the AFP and DIAC and that the officers were simply doing their job in what were difficult conditions.” (page 192)

• “Further I do not accept that the Minister was simply going to do the bidding of his department. In my opinion Mr White and those working with him knew the Minister would bring an independent mind to the task of evaluating the material provided to him.” (page 192)

• “I found no evidence to suggest that any political pressure or influence was brought to bear on Mr Andrews or that he made his decision to cancel Dr Haneef’s visa in order to achieve some actual or perceived political advantage or in the interest of expediency.” (page 194)

• The totality of the factual material is insufficient to support an inference that the Minister was acting for an improper purpose.” (page 196)

• “There is no evidence supporting the conclusion that he acted improperly in cancelling Dr Haneef’s visa.” (page 196)

• “I found no evidence of political influence or motivation in connection with the decision to cancel Dr Haneef’s visa and issue a Criminal Justice Stay Certificate.” (page 228)

A legitimate use of the statutory discretion

• “I am satisfied that consideration of the possible cancellation of Dr Haneef’s visa arose legitimately as part of the broader security context from as early as July 4 – once Dr Haneef had been identified as a person of interest in connection with the UK incidents and it had been confirmed that he was in Australia on a subclass 457 visa.” (page 181)

• “It is not in dispute that it was legally open to the Minister to exercise his discretion to cancel Dr Haneef’s visa, both on the understanding of the law at the time of his decision and in light of the subsequent decision of the Federal Court.” (page 195)

• “Dr Haneef’s visa was not cancelled ‘as a result of criminal charge having been laid.’ [The contention of Haneef’s lawyers] It was cancelled because of his suspected association with people suspected of being involved in criminal conduct.” (page 195)

• “In considering these events [information provided to the Minister about the UK incidents and the Haneef association] it would, in my opinion, be clearly arguable that there were reasonable grounds for that suspicion (and, I emphasise in the context the circumstances of Dr Haneef’s attempted departure).” (page 269)

The national interest

• “Mr Andrews reiterated his assertion that he acted in the national interest, and I have no doubt he believes he did.” (page viii)

ASIO

Mr Clarke considered that the ASIO assessment should have been considered. However, he also found:

• “ASIO was not prepared to provide information to DIAC for consideration under s 501 and remained concerned about the potential disclosure of any material (notwithstanding the protection afforded by s. 503A).” (page 170)

• “ASIO’s views were not put before the Minister.” (page 197)

• Mr Clarke also notes that had ASIO’s advice been before the Minister, he may still have proceeded to cancel the visa. (page 206)

• Moreover, he recommends that: “The Minister for Immigration and Citizenship be added to the distribution list for security intelligence reports produced by ASIO, in addition to senior departmental officers.” (Recommendation 6, page 276)

Conclusion

The government has spent $4 million to be told what Justice Spender found last year: that I did not act with an improper motive.

The recent events in India remind us that we cannot be complacent about national security. The Australian people expected me to act. I had the courage to do so.
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