Dr Mohamed Haneef has had limited success in obtaining further information from the Australian Federal Police (AFP) about the decision to detain him, cancel his visa, issue a Criminal Justice Stay Certificate against him, as well as the communications about him with other government departments or agencies. In Haneef and Australian Federal Police, Re [2009] AATA 51 (23 January 2009), the Administrative Appeals Tribunal (AAT) ruled that the AFP must reconsider its decisions in relation to approximately twenty-five documents identified in response to Dr Haneef’s application under the Freedom of Information Act 1982 (Cth) (FOI Act). However, the AFP’s refusal to release approximately fifty further documents has been upheld.

Dr Haneef came to the public’s attention in July 2007, when his second cousin drove a Jeep saturated in petrol into Terminal One at Glasgow Airport. The Jeep burst into flames on impact. The United Kingdom Metropolitan Police Service, Counter-Terrorism Command (MPS) issued an arrest warrant for Dr Haneef and asked the AFP to make inquiries about him in Queensland. The AFP were told that a mobile phone SIM card involved in the attack had been bought by Dr Haneef two years earlier. This led to his arrest at Brisbane airport, where he was about to depart to India to visit his wife who had just given birth to their daughter.

Dr Haneef was charged with assisting terrorist activity in the United Kingdom. After he was granted bail, he was served by the Department of Immigration with a notice cancelling his visa to remain in Australia. However, this was followed immediately by service of a Criminal Justice Stay Certificate which required Dr Haneef to remain in Australia temporarily. In late July 2007, the charges against Dr Haneef were dismissed and he left the country.

Of interest to those dealing with applications made under the FOI Act, in its decision the AAT:

  • confirmed that section 33(1)(b) of the FOI Act, which exempts disclosure of a document if it would divulge any information communicated in confidence by an authority of a foreign government to an authority of the Commonwealth, applies even where the document in question has been disclosed publicly elsewhere. This exemption was examined in relation to the AFP’s refusal to disclose documents which contained information communicated to it in confidence by MPS, but which were disclosed (with MPS’s permission) as part of the AFP’s submission to the Clarke Inquiry into the case of Dr Mohamed Haneef
  • did not accept that “the intensity or extent of a particular operation...” are capable of being described as either “methods” or “procedures” in terms of section 37(2)(b), which exempts disclosure of a document if it would disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law and prejudice the effectiveness of those methods or procedures. The AAT also ruled that merely stating that someone was subject to surveillance was not enough to gain exemption under this section. However, several documents were held to be legitimately exempt because their disclosure would reveal forms of electronic technology for accessing information that are not generally known in Australia, and
  • found that the AFP waived the legal professional privilege provided under section 42 of the FOI Act in relation to an advice provided by an officer of the Commonwealth Director of Public Prosecutions by stating as part of its submission to the Clark Inquiry:

“The senior CDPP officer provided the AFP with advice that, notwithstanding certain evidentiary limitations, there was sufficient evidence to charge Dr Haneef. The advice included draft wording for a charge that could be laid.”

The AAT’s decision was handed down on the same day that the Commonwealth Government publicly released the Clarke Report, which made a number of findings critical of the handling of the case by Commonwealth Government agencies. However, no illegal or improper conduct was found to have occurred.

The timing of the decision is also interesting in light of the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth) currently before Parliament which, if passed, will insert new provisions into the FOI Act to require that the Inspector- General of Intelligence and Security be requested to give evidence in relation to AAT proceedings involving a review of a national security, defence or international relations exemption or a confidential foreign government communication exemption.