KEY POINTS:
On Thursday Dr Mohammed Haneef was happy to go to jail. It may not have been his first choice, but Brisbane's Wolston Correctional Centre is a big step forward from the city's police watchhouse, where he has spent more than two weeks, and a respite from Sydney's Villawood Migration Detention Centre and eventual deportation.
Instead of absolute isolation from the world and a ceaseless round of interrogation by Australian and British counter-terrorism agents, Haneef will be allowed to exercise, watch television, read magazines and books, talk on the telephone and receive visitors.
Tomorrow, his wife's cousin arrives from India with messages from his wife and family in Bangalore and perhaps bringing a photograph of his new-born baby daughter.
On August 8, lawyers will argue against a ministerial order for his deportation in the Federal Court.
In between all this, Haneef, a 27-year-old junior doctor at Gold Coast hospital, has become a test of Australian democracy involving a deepening war between government and legal systems, the nation's draconian anti-terror laws, and the credibility of Prime Minister John Howard as he heads for the polls this year.
So far, democracy is doing pretty well, albeit bruised. Haneef has been given a large media hearing and has talented lawyers working on his side. The courts have rejected attempts to keep him in custody under Australia's uncapped detention laws that, in theory, could allow him to be interrogated for as long as the authorities wish. His barrister has defied efforts to keep the facts of his case secret, and the ruling of a Cabinet minister is being challenged.
None of this guarantees victory for Haneef. Nor does it answer the fundamental question of his guilt or innocence in association with the bungled attempts to bomb London and Glasgow last month, allegedly by a cell of militant Islamic doctors.
Despite widespread cynicism at the charge laid against him and the Government's response to it, the system has protected Haneef so far. It has also enabled critics of Howard's anti-terror laws to intensify their campaign against what they see as a legislative attack on basic human rights, and to attack the Government's treatment of Haneef as an assault on the rule of law.
Haneef was arrested on July 2 as he prepared to fly home to India on a one-way ticket from Brisbane to Bangalore, following advice from British authorities that he was associated with some of the men involved in the bid to detonate two car bombs in central London on June 29, and to ram an explosives-filled Jeep Cherokee into Glasgow International Airport's international terminal the following day.
Federal Police used anti-terror laws to extend repeatedly their detention of Haneef without charge, arguing successfully that continued interrogation was required. Each extension required an application before a magistrate.
But as legal and public pressure against his detention mounted, police this week finally abandoned their efforts to further extend their questioning and charged Haneef with "intentionally providing resources to a terrorist organisation being reckless as to whether the organisation was a terrorist organisation".
The expectation was that given the nature of the charge and the laws under which it was laid, Haneef would be detained in custody. In effect, the laws invert the onus of proof and require a defendant to prove that he or she fulfils a condition of "exceptional circumstances" to qualify for bail.
HOWEVER, magistrate Jacqui Payne used a series of High Court precedents to allow bail of A$10,000 ($11,090) on strict reporting conditions, finding that: Haneef was not alleged to have been directly involved with the British terror cell; a SIM card given by Haneef to one of the alleged bombers - the basis of "recklessly providing resources" - was not alleged to have been used in the attacks, but had instead been left with a family member when Haneef left Britain for Australia; Haneef had no criminal history, a good work record and was studying with the Australian College of Physicians; and that his passport had been seized and close surveillance was inevitable.
Almost immediately, Immigration Minister Kevin Andrews declared Haneef had failed the character test under the Migration Act, his work visa was revoked, he would be detained at Villawood Detention Centre in Sydney and, subject to appeals, be deported - whether or not he was found guilty of the terrorism charge.
Andrews refused to disclose his reasons and, denying claims the order had been made to frustrate the granting of bail, said the deportation order had been made entirely separate of criminal charges. He was supported by Attorney-General Philip Ruddock, who said Andrews had not discussed the decision with other ministers and made it in accordance with the law: "The functions [of criminal and migration law] are quite separate and distinct, and the timing is irrelevant."
Their statements were drowned by howls of outrage and derision. Lawyers regard Andrews' decision as an attack on the judiciary and legal process; human rights activists see it as confirmation of the Government's use of terrorism to remove the most basic protections.
Australian Bar Association president Stephen Estcourt described the move as a cynical exercise of power, as detention under migration law was designed to remove a person from the country. Haneef's visa instead appeared to have been cancelled to secure his presence in custody.
"If that's the case, that's a serious threat to the rule of law," Estcourt said. "It's directly countermanding the order of a judicial officer.
"The minister has said he had a parallel obligation to that of the magistrate in dealing with the question of bail. In my view he's living in a parallel universe if he thinks his actions wouldn't interfere with the administration of justice."
Estcourt said all the material available to the Federal police would have been presented to the magistrate, who made her decision based on careful consideration of that evidence. Now Haneef would have to dispute that evidence in a migration appeal that would in effect be a trial before a trial.
"I would have thought that this would rebound on the Government, because it's almost inevitable that there will be a judicial review of the decision to cancel the visa," he said. "That will play out all the evidence that's relevant to the criminal charge."
Law Council president Tim Bugg said the detention and migration laws needed to be reviewed after Andrews' "unilateral decision" to cancel Haneef's visa: "I think people are justified in saying, and asking, 'why did that happen? Why is it you have such contrasting systems?' When one considers the very politically charged environment in which all this is happening, we must also monitor very closely whether or not political considerations are driving this, as opposed to matters of principle."
Critics have also alleged the Government - despite denials by Howard - has been leaking incriminating details to the media. Reports in News Ltd newspapers, for example, gave information that could have come only from official sources, including allegations that Haneef had been under surveillance from the time of the London bombings, details of computer contacts between Haneef and some of the British suspects, and suggestions that police have "significantly more evidence against him than has been disclosed publicly".
Haneef's lawyers responded with their own leaks, releasing the confidential 52-page document outlining Andrews' previously secret reasoning for the visa cancellation, and the transcript of Haneef's first interview with Federal Police agent Adam Simms.
The two documents provide the basis of the case against Haneef, and his answers to it. They also show that Haneef did not dispute the key charge that he gave a SIM card to one of the British suspects and had been in contact with him, but also explained the suspect was a second cousin and talks were mainly on family affairs. This information was known at the outset of Haneef's 12-day detention.
THE case is this: Haneef graduated as a doctor from the Dr B.R. Amberdkar Medical College in Bangalore in 2002, completed a 12-month internship there, and moved to Britain, where he lived in a boarding house in Liverpool with a number of other Indian doctors, including his second cousin Sabeel Ahmed, one of the suspected bombers.
Haneef had given Sabeel Ahmed a SIM card due to expire in August 2006 when he left for Australia last year because of time left on it. The two had since kept in touch on internet chat rooms, the last time about the birth of Haneef's daughter.
Haneef had also visited Ahmed's brother Kafeel in Cambridge twice in 2004. Kafeel Ahmed, then a PhD engineering student, is now in hospital with serious burns after allegedly ramming the Jeep into the Glasgow airport terminal.
In his police interview, Haneef denied any knowledge of the British bombings or his cousins' alleged roles in them, declined comment on politics, said he had not undertaken any religious training, regarded jihad as "a struggle, just life itself is a struggle", and denied ever having been approached to join a militant jihad: "Every drop of blood is human, and I feel for every human being."
Barrister Stephen Klein has admitted releasing the record of interview, saying in a statement that he had done so because it provided the full bevy of information available to police at the time of Haneef's arrest, and in response to "an aggressive campaign of leaking, selectively and misleadingly, from the same document and other allegedly secret documentation allegedly held by law enforcement agencies, to suggest that the case against Dr Haneef was stronger than the AFP had been able to put before the court".
Klein, who is supported by the Queensland Bar Association and by separate legal opinion given to the Herald, has rejected suggestions he had acted unethically or in contempt of court. Haneef had a statutory right to the record of interview, and there was no obligation on him or his counsel to keep it secret.
Haneef is now an emerging embarrassment for the Government, building on public anger at its earlier abandonment of David Hicks to imprisonment at the US military prison at Guantanamo Bay in Cuba.
Hicks' father Terry drew a parallel at a luncheon speech in Canberra last week, and the Law Association's Bugg noted: "I think what happened to [David] Hicks is very much influencing the way people are viewing what's happening to Dr Haneef."
