Clarke shows why we need more public scrutiny

Justice Clarke has pilloried virtually all authorities in involved with the Haneef fiasco…but yet again no-one is apparently ‘responsible’ for wholesale incompetence. Buried in the report (pp 285-6) are Australian Federal Police attempts to change the law to muzzle release of transcripts – it is vital that authorities proven to be inept are further exposed to the light of public scrutiny, not sheltered from it.

The full Clarke Report is available here.

This is what Clarke reported on this matter:

6.3.5 A prohibition on publishing transcripts of interview

The AFP submitted that I should recommend ‘that the Crimes Act 1914 be amended to restrict the use of transcripts of interview’.
During the Operation Rain investigation, police provided Dr Haneef’s legal representatives with transcripts of the interviews conducted with Dr Haneef. On 22 August 2007 Dr Haneef’s legal representatives released the transcript of the second police interview to the media.

The AFP states that the consequence of this release was that the public, through the media, were invited to review the transcripts and make their own judgement as to Dr Haneef’s involvement in the terrorism incidents. As the transcripts were
lengthy, those views were likely to be formed by those portions of the transcripts that were extracted by the media and used in commentary and editorial articles. The AFP regarded this process ‘as potentially prejudicial to any possible trial of Dr Haneef, the trial of defendants in the UK and to the broader Operation Rain investigations’.

The AFP wrote to the Queensland Legal Services Commission in respect of the conduct of Senior Counsel for Dr Haneef who had released the transcript. That organisation dismissed the complaints against Senior Counsel stating that although the release of the record of interview contravened rule 60 of the Barrister’s Rules which prohibits barristers from publishing information concerning a matter currently before a court except in certain limited circumstances there was, because of the exceptional circumstances in the present case, no reasonable likelihood that a disciplinary body would find that the contravention of the rule amounted to unsatisfactory professional conduct or professional misconduct.

The stated view of the AFP was that the disclosure of the records of interview invited uninformed public comment on the evidence and undermined the proper conduct of the police investigations and court proceedings. It went on to say that ‘there is an important public interest in avoiding matters, particularly criminal matters, from being tried in “the court of public opinion”’. It also raised the question of national security:

    A further issue arises in national security investigations where overseas links may apply and the suspect may be questioned in relation to security classified materials. Some of that material may be sourced from domestic and foreign intelligence agencies.

It was noted that some of the material released relating to Dr Haneef may impact on overseas trials.

Generally, there is no doubt that where evidentiary material becomes available to the media before the commencement of a trial either as a result of a leak or the release of the information by someone who is lawfully in possession of the material there is a potential risk that publication of that material may prejudice a fair trial.

Whether such publication does have that potential is a contentious one and has been the subject of a number of celebrated cases. The argument in most of those cases focuses on the clash between the right to a fair trial as against the right to free speech. There is, in New South Wales, a statutory provision (s. 314 of the Criminal Procedure Act 1986) which makes provision for media access to court documents. That section does not however deal with the wider problem raised by the AFP.

I acknowledge that the problem exists and that the question raised is an important one, but there are two reasons why I am not prepared to make the recommendation sought.

  • In my view, even an expansive reading of my terms of reference, and in particular term (a), upon which the subsequent terms are dependent, does not encompass consideration of this vexed question.
  • Even if I were to seriously consider making such a recommendation I would need to have studied detailed argument for and against the proposal from not only the police but others, including representatives from relevant professional law bodies and the media. The subject is a complex and controversial one, and without the benefit of arguments on the conflicting point of view I could not properly entertain the question. I add that a consideration of this question, involving the consideration of arguments from interested parties, would be a considerable diversion from my task.


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