CONCERNS ABOUT the course the Haneef Inquiry has taken have prompted the Law Council of Australia to write to federal Attorney-General Robert McClelland, urging him to provide a proper statutory basis for the inquiry.
The Law Council’s letter follows a statement by inquiry head John Clarke QC, in which it was revealed that information sought from government agencies had been provided only “in the main” and only after protracted negotiations.
Clarke also revealed that, despite earlier expectations, a large part of the information gathered by the inquiry would not be able to be made public.
Law Council President Ross Ray QC said: “The Law Council has every faith in Mr Clarke and his determination to deliver a thorough and independent report on the conduct of the Haneef case.
“However, the reality is that under the current arrangements, what information is provided to Mr Clarke and on what terms is a matter entirely within the control of the agencies involved.”
Ray said that whether or not more information would be disclosed and/or made publicly available if the inquiry were reconstituted as a royal commission or under special statute was not the point.
“From a credibility perspective, the issue is who is making these decisions about disclosure and publication and on what criteria,” he said.
“It is for that reason that I have urged the Commonwealth Attorney-General to take the necessary steps to provide a proper statutory framework for the inquiry which will ensure that it is able to access all relevant information on terms which are provided for by law, rather than on terms which are dictated by the parties involved.”
“Without such a framework, the Government risks undermining public confidence in the ultimate outcome of the inquiry,” Ray said.
The Australian Federal Police, the Department of Immigration and, to a lesser extent, ASIO and other federal agencies have often taken a hard line on which documents are provided to the inquiry.
Even after the “protracted negotiations”, Clarke said he was unable to make public many of the subsequently available documents because “a very high proportion … of the material from departments and agencies carries a security classification which limits the extent to which it can be shown to other people or disclosed generally”.
In general the AFP is blaming its British counterparts for not being able to take more documents out of the Confidential or Highly Classified category, as police and prosecuting authorities in the UK are claiming that to do so might compromise criminal trials there.
Earlier, the Immigration Department — without the UK criminal trial “defence” available to it — also strenuously fought to prevent the release of documents to Haneef’s legal team by claiming that it was not in the public interest to provide the 282 documents sought.
The department eventually agreed to provide all but six of the documents, but in a decision on 8 July the Administrative Appeals Tribunal found that the claim for secrecy was valid in relation to only one of those six documents — in other words, no basis existed to deny providing 281 out of the 282 documents.