In November 2007, Justice Adams of the NSW Supreme Court criticised the conduct of certain ASIO officers in the case of Izhar Ul-Haque. The events in question related to a search executed at the Ul Haque residence, and the interrogation of Izhar Ul Haque under the colour of a search and entry warrant in November 2003.
Justice Adams found that certain admissions made by Izhar in the course of subsequent investigations by the AFP were inadmissible, as they had been coloured by the previous coercive conductof ASIO. He further found that, on the evidence, it may be possible to argue that ASIO officers B15 and B16 had committed the common law wrongs ofkidnapping and false imprisonment by interrogating and detaining Izhar in thecourse of executing a search, and without a specific warrant for hisquestioning. Despite these findings, no criminal charges or formal disciplinary proceedings were initiated against officers B15 and B16.
IGIS Inquiry and Findings:
In April 2008, Inspector General of Intelligence and Security Ian Carnell initiated an inquiry into the conductof ASIO in the Ul Haque case. Under the IGIS Act, it is within the Inspector General’s power to investigate and makerecommendations to the responsible minister regarding the compliance of ASIOwith Commonwealth laws and internal guidelines, as well as relevant humanrights standards.
Whilst acknowledging that Mr Ul Haque maygenuinely have apprehended coercion in his treatment by ASIO, the InspectorGeneral declined to recommend any further criminal proceedings against B15 andB16 for kidnapping or false imprisonment, as:
· Mr Ul Haque readily said ‘Yes’ or ‘OK’without objection, when initially asked to accompany ASIO officers forquestioning (p 31)
· Mr Ul Haque did not voice anyobjection, or question at any point whether he had a choice in answering ASIOquestions, nor did he ask for a lawyer (p 31)
· Mr Ul Haque did not allude to or raisethe fears he held for his family’s safety during the execution of the searchwarrant (p 31)
In these circumstances, the InspectorGeneral indicated that it would be unreasonable to expect that the ASIOofficers apprehended or intentionally prolonged any coercion experienced by MrUl Haque.
The Inspector General also seemed toindicate that the absence of a complaint to his office following the investigationindicated that ASIO’s behaviour had not been designed to cause more concernamongst the household than is reasonably expected in the execution of a searchwarrant (p 22).
In concluding, the Inspector Generaloffers the following cautionary recommendations to ASIO:
· ASIO ought to be weary in assuming alevel of knowledge of counter-terrorism authorities on the part of people beingquestioned, or casting aspersions on how their conduct is being interpreted (p37)
· ASIO ought to be cautious in conductinginterviews under search warrants, as such warrants extend only to entry andsearch of premises and only such questioning as is reasonably incidental tothis purpose (p 39)
· Likewise, if ASIO officers attendpremises for the purposes of seeking an interview, they cannot enter or remainon the premises without the consent of the occupants (p 39).
The IGIS’ findings seem toassume that those in contact with counter-terrorism authorities will have ahigh-level understanding of their operations and of complaint mechanisms in thecase of oppressive conduct. It appears all the more important, given thesefindings, to be appraised of our rights and have some basic information at handregarding the conduct of counter-terrorism authorities.
More information on the Ul Haque case can be found through the IGIS website.