13 March 2008

Transcript of Clarke Inquiry into Haneef Case

TOPICS: JUDICIAL INQUIRY INTO THE MOHAMED HANEEF CASE; COUNTER-TERRORISM LAWS.

SPEAKERS: ATTORNEY-GENERAL Robert McClelland; former New South Wales Supreme Court Justice John Clarke QC.

ROBERT MCCLELLAND:

Thanks very much for coming along, everyone. I have with me here today Mr John Clarke QC, and he has indicated he will be prepared to also respond to any questions after I make an initial brief statement.

Before the last election, Labor gave a commitment to hold a judicial inquiry into the case of Dr Mohamed Haneef. Today the Government is honouring that commitment by establishing an inquiry to be conducted by former New South Wales Supreme Court Judge, the Honourable John Clarke QC.

It is essential that we maintain public confidence in Australia's counter-terrorism measures. Australians are entitled to be reassured that their national security agencies are functioning as effectively as they can be, and that our counter-terrorism laws are being appropriately enforced. Understandably, the Haneef case has prompted some in the community to question this.

The Government is confident that Mr Clarke will conduct a rigorous and independent inquiry that will enable informed considerations of the lessons to be learnt from the Haneef case and of any potential improvements to how our security and law enforcement agencies work and cooperate in counter-terrorism matters. My published statement sets out the terms of reference of the inquiry.

Mr Clarke has indicated that he will conduct the inquiry in a way that ensures the protection of national security information, ongoing investigations and upcoming overseas trials. Mr Clarke has also indicated he will ensure that there are opportunities for public input into the inquiry, including by advertising for submissions and conducting public forums on the operation of our counter-terrorism laws and arrangements.

The Government has been assured by all Commonwealth agencies that they will fully cooperate with the Clarke Inquiry. The Clarke Inquiry has been asked to present a report that can be made public and which, if necessary, may be supplemented by a confidential report. The Government has asked Mr Clarke to report by the thirtieth of September 2008 and, as I said, I'm very happy to answer questions. Mr Clarke has also indicated that he is prepared to answer questions.

QUESTION:

Is it likely that Mr Andrews will be compelled to give evidence?

ROBERT MCCLELLAND:

The - the question of any people who will be invited to meet with Mr Clarke will be a matter for Mr Clarke. We would expect that Mr Andrews will have every opportunity to meet with Mr Clarke and that will be a matter for Mr Clarke.

QUESTION:

Do you think Kevin Andrews has an ethical obligation to appear before the committee?

ROBERT MCCLELLAND:

It is in the public interest that everyone, who reasonably can, fully cooperates with inquiry. It is important to ensure that the public has full confidence in our security agencies and to ensure that our security agencies, individually and collectively, are working as effectively as they possibly can be. And we would expect, as all Commonwealth agencies have indicated they are prepared to fully cooperate with the inquiry, we would expect that, insofar as those persons identified by Mr Clarke as being able to assist his inquiry are approached, that they would have consideration to that public interest.

QUESTION:

What powers will Mr Clarke have? Most specifically, will he be able to subpoena witnesses?

ROBERT MCCLELLAND:

Mr Clarke will conduct the inquiry according to the terms of reference. It has been made clear that Commonwealth agencies, all Commonwealth agencies, have undertaken to cooperate. But if at some point in time Mr Clarke advises the Government that the absence of cooperation by anyone he believes would provide material assistance to the effectiveness of the inquiry, if he presents that advice to the Government, then we will reconsider the matter and specifically consider any request to reconstitute the inquiry under the Royal Commission powers.

QUESTION:

So then, conceivably, Kevin Andrews could be subpoenaed to appear in this inquiry if he chose - if he declined a long [indistinct] offer?

ROBERT MCCLELLAND:

Again, the - the manner in which the inquiry is conducted and who is called to meet with Mr Clarke will be - will be a matter for Mr Clarke.

QUESTION:

Mr McClelland, is it envisaged that Dr Haneef himself or any of the other people involved will be giving evidence in person?

ROBERT MCCLELLAND:

Mr Clarke has indicated that it would obviously and clearly be desirable for Mr Haneef to be invited to appear. And to facilitate that, Mr Clarke has indicated he would be prepared to travel to India and we would provide necessary assistance for Mr Haneef's representation to travel for the purpose of providing advice to him, to meet with Mr Clarke.

QUESTION:

How much of the inquiry will be held in public?

ROBERT MCCLELLAND:

Mr Clarke has indicated that while it will be necessary, obviously, in this area to protect crucial national security information and operational matters of the relevant agencies, together with forthcoming overseas trials, he will endeavour to make as much information as possible public, and that is something that we would encourage.

QUESTION:

Kevin Andrews always justified his decision to revoke Dr Haneef's visa on the basis of secret evidence that he said had been supplied by the AFP to him. Is it your expectation that that evidence will become public in the course of these inquiry and that the public will finally see the full breadth of evidence and the full case against Dr Haneef?

ROBERT MCCLELLAND:

The Department of Immigration has indicated that it will fully cooperate with the inquiry which we would expect to include making all necessary available files available to Mr Clarke. The extent to which any national security information, sensitive national security information, is contained in those files will be a matter for Mr Clarke. But Mr Clarke is well aware, clearly, of the need to protect crucial national security information. But, again, in the context where his report will ultimately be made public, save insofar as it may be necessary to supplement that by a confidential report dealing with national security information.

QUESTION:

Will you adopt all his recommendations?

ROBERT MCCLELLAND:

We will clearly give consideration to all the recommendations that Mr Clarke makes; we'll take one step at a time and wait till the inquiry concludes and have regard to all those recommendations. I should say, in that context, we're all aware and clearly aware of recommendations that have been made by the Street Inquiry that has been handed down today, that has a number of very sensible and practical recommendations. We will be working through those recommendations to see how they may improve the operation of our national security agencies and, similarly, we will be doing the same thing when Mr Clarke provides his report.

QUESTION:

Will, funding be provided to Dr Haneef's lawyers for when it's [indistinct] in Canberra?

ROBERT MCCLELLAND:

Under the normal course of these sorts of inquiries, if there is a person who would be of material assistance then legal assistance is provided. And specifically in the case of Mr Haneef, assistance would be provided to enable his lawyers to travel to India to advise him in the event that Mr Haneef meets with Mr Clarke.

QUESTION:

Why does Mr Clarke need to go to India? Is Dr Haneef still refusing to come to Australia to give evidence and have you approached him about this matter?

ROBERT MCCLELLAND:

We haven't approached Mr Haneef about the matter. Mr Clarke has indicated to facilitate the meeting occurring, that he would be prepared to make that trip.

QUESTION:

[Indistinct] public statements he'd made, that Dr Haneef has made, that he doesn't feel that he wants to come back to Australia at this point.

ROBERT MCCLELLAND:

We - we simply haven't canvassed that matter with him. If it was preferable if he determined, or his legal advisors determined, it was preferable to travel to Australia then clearly, I think, Mr Clarke would facilitate that.

QUESTION:

How will you reconcile this inquiry with the investigation into Dr Haneef, which as of two or three weeks ago the AFP said was ongoing - was active?

ROBERT MCCLELLAND:

The facts of the matter are that Mr Clarke will clearly exercise his responsibilities having regard to, not only sensitive national security information, but the fact of ongoing inquiries. And, indeed, the fact that there are overseas trials, relating to events in the United Kingdom. So, Mr Clarke will be mindful of those.

QUESTION:

In regard to the confidential report, would it just be on national security information and ongoing investigations, or, for example, could Kevin Andrews put his case that he would prefer the - any testimony he was going to be giving to be taken into confidence? Would you entertain that or is it just on national security?

ROBERT MCCLELLAND:

Well, again, the method of operating the inquiry will be a matter for Mr Clarke. He - Mr Clarke may wish to make a comment in that respect.

JOHN CLARKE:

Well, all I can say about it at this stage, and understand that I am not fully informed in all the facts, but all I can say is Dr - Mr Andrews will be invited to make a statement. If he says he'll make a statement only on confidential terms, that's something I'll have to consider at the time and I can't give you an answer at the moment.

QUESTION:

The inquiry - the Haneef case showed up some serious information exchange problems between agencies, which the terms of reference here seem to contemplate inquiring into, but there's no reference in the terms of reference here to any problems with the information flow between the United Kingdom and Australia, for example, and policing agencies. Is that an oversight or is that some area that you specifically decided not to look into?

ROBERT MCCLELLAND:

The inquiry will focus specifically on the conduct of federal agencies and also state national security agencies, to the extent that they are relevant in the Haneef matters, and areas where the performance of Australian agencies, individually and collectively, can be improved. It will not be examining the international flow of intelligence.

QUESTION:

Why not? Why not though?

ROBERT MCCLELLAND:

The Government's aim is here to receive a report as to such measures that can be undertaken - that are necessary and can be undertaken to improve the functioning of Australia's national security agencies. It will not be part of this inquiry to look at the functioning of any overseas intelligence or security agency.

QUESTION:

Isn't terrorism an international problem? I mean, isn't - wasn't that one of the key things that was shown up by this case, that, you know, there was confusion over where the SIM card was and so forth? The information flowing between security agencies in the UK and here, surely was a key part of the breakdown in the evidentiary process.

ROBERT MCCLELLAND:

The facts of the matter are that Australia's national security depends to a great deal on the relationships with overseas intelligence agencies, including the quality of information that is provided and the cooperation with those agencies. We do not consider it part of Mr Clarke's role to investigate in respect to the conduct of those agencies, but rather to restrict it to and focus upon those areas where he can sensibly report in matters that the Australian Government can improve.

The reality is that we want the report to be conducted expeditiously, and the facts of the matter are that broadening out into a range of other matters would unnecessarily prolong it and wouldn't provide information in those areas where the Australian Government can relevantly respond to.

QUESTION:

A question for Mr Clarke. Mr Clarke, would it be physically possible for you to conduct an inquiry without the cooperation of Kevin Andrews?

JOHN CLARKE:

Well I can't really answer that at this stage. I am aware that there's an affidavit by Mr Andrews and if I have access that that might obviate the need for me to discuss the matter with Mr Andrews. Obviously, it would be preferable to talk with him, but I have no coercive powers and if he won't talk to me I may be forced back on relying on what he said in the affidavit.

QUESTION:

You were asked a few weeks ago formally to include the potential of compensation for Dr Haneef in terms of the terms of reference. Why aren't they included?

ROBERT MCCLELLAND:

Well, again, we make no apology that the focus of the inquiry is going to be on lessons to be learnt from the Haneef matter, those areas where our national security agencies can improve their performance, where - those areas where our national security agencies can improve cooperation. The inquiry won't be focusing on the issue of compensation.

QUESTION:

But the Government said that he had faced hardship for being unlawfully contained and then kicked out of the country.

ROBERT MCCLELLAND:

Again, I make no apologies for the fact that the inquiry will be focused on improving the national security performance, individually and collectively, of our national security agencies.

QUESTION:

Why hasn't Mr Clarke been given a full range of powers, such as under a Commission of Inquiry - a Royal Commission?

ROBERT MCCLELLAND:

The reality is that Royal Commissions are incredibly expensive; they are inflexible, they are extremely cumbersome, they take a considerable length of time. We are not satisfied that a Royal Commission would be able to disclose to any greater extent information to the public. We believe that the arrangements that have been set in place with Mr Clarke to conduct this inquiry, in circumstances where all Commonwealth agencies have indicated their intention to fully cooperate, will be adequate.

They will enable Mr Clarke to sensibly and responsibly consider those areas where it is necessary to protect sensitive information and operational information, and that is the reason we've adopted this course of action.

QUESTION:

Attorney, you've expressed concern about the broader suite of counter-terrorism laws that operate at the moment. Are there particular elements that - are you talking about a wind back of some, you know, like the Sheller Committee recommended some changes, control orders prevented detention, they're controversial. Is there anything that was [indistinct] on those scores?

ROBERT MCCLELLAND:

The - the Government, obviously, is in possession of the recommendations of the Sheller Review of counter-terrorism laws, the review conducted by the joint committee on ASIO, ASIS and the intelligence agencies, and also the Australian Law Reform Commission in respect to the sedition offences. We are, obviously, giving consideration to those matters.

One of the specific terms of reference of Mr Clarke is to report on the effectiveness of counter-terrorism laws in respect to the facts surrounding the Haneef matter and, obviously, there may be some relevant matters that we will have to consider in light of any recommendations.

QUESTION:

Are you acknowledging that security agencies have taken a battering in public confidence over their handling of the Haneef matter - Haneef matter?

ROBERT MCCLELLAND:

I think all agencies involved in the Haneef matter have publicly acknowledged that there were failings. I should say that since being in the role of Attorney General, I am satisfied that our national security agencies are operating at a high degree of functionality. What we want to ensure is that they are functioning at their absolute best, again both individually and collectively, and certainly we believe that this inquiry and recommendations flowing from it will be of assistance in ensuring that that occurs.

QUESTION:

Attorney, the Federal Police Commissioner has criticised the way the media covered the Haneef matter. Will Mr Clarke's inquiry look at the way the media covered the matter and whether there might be any recommendations pertaining to that?

ROBERT MCCLELLAND:

There is a specific term of reference relating to communication protocols and guidelines, as they apply between the various agencies. But, again, Commissioner Clarke has indicated, and we think appropriately so, that he will endeavour to make as much information as he reasonably can public, including establishing a dedicated website for that information to be displayed.

The Government is on the record as saying and we are firmly of the view that the media has a valuable role in ensuring accountability in the operation of agencies, law enforcement or security agencies and we respect that role.

QUESTION:

Why is Mr Clarke travelling to India? Surely it would be cheaper to bring out Dr Haneef to Australia, given that Mr Clarke would need people to travel with him?

ROBERT MCCLELLAND:

 Mr Clarke has indicated he is prepared to do that if that would be the preference of Mr Haneef and his legal advisers.

ENDS