ASIO secrets mean indefinite legal limbo for refugees

Wikimedia Commons-Phillip Halling

Instances of lack of transparency can give rise to groans and moans here and there from the likes of me but often the issue doesn't amount to a row of beans.

Others however have life-changing effects. This example is truly shameful.

As Professor Spencer Zifcak in last Friday's Australian (subscription) reminded us, 50 or so people judged to be genuine refugees are now in indefinite detention after receiving an adverse security assessment from ASIO.

"They are not permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it."

 The criteria for assessment is also not publicly available.

"Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence."

As non-citizens they have no right to AAT review. And

"Judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk. That is why, following the High Court's deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque. The Attorney-General, Nicola Roxon, should lift this scandalous abuse of human rights to the top of her list."

Last month the Joint Select Committee on Australia's Immigration Detention Network (Chapter 6) reached a similar conclusion- "The impossible situation these people are in is perhaps one of the greatest challenges currently facing the immigration detention system."
And "The evidence before the Committee outlines why .. legal experts specialising in security, human rights and refugee law have concluded that Australia is in breach of its obligations under international law." Professor Saul, from the University of Sydney for example, contended that not providing evidence upon which the assessment is based is a violation of article 9(4) of the International Covenant on Civil and Political Rights (ICCPR):

Where detention is purportedly justified by a State on security grounds, the requirement of substantive judicial review of the grounds of detention under article 9(4) necessarily requires a judicial inquiry into the information or evidence upon which a security assessment is based. Without access to such evidence, a court is not in a position to effectively review the substantive grounds of detention.

But the government record in staring down the intelligence/national security/international relations agencies to insist the line be drawn at necessary and appropriate secrecy and not a jot further, regrettably isn't impressive.Just another example- in a separate case, the Attorney General is poised to certify that the case for access to 34 year old records from the Australian Embassy in Jakarta, not released by Archives, revealing shocking conditions in East Timor can't be argued in the AAT in the presence of the applicant or his lawyer for unspecified security, defence or international relations reasons.

On the refugees:

6.122 The Committee notes ASIO's view that disclosing reasons behind a negative assessment to the individuals in question could impact on ASIO's ability to gather reliable background information. However, the Committee is not convinced that disclosing relevant information to a security-cleared third party, or a security-cleared legal representative of the individual, would be so detrimental as to justify detention without charge for the term of the individual's natural life.
6.123 Furthermore, being aware that a number of refugees have received permanent visas and are living in the community despite adverse security assessments, the Committee believes that ASIO is able to discern varying levels of risk posed by individuals with adverse security assessments.
6.124The Committee is of the view that the government should take immediate steps to resolve how best to afford refugees an opportunity to appeal the grounds for their indefinite detention without compromising national security...

In conclusion, the committee

resolutely rejects the indefinite detention of people without any right of appeal. Such detention, effectively condemning refugees who have not been charged with any crime to detention for the term of their natural life, runs counter to the basic principles of justice underpinning Australian society. For this reason, the Committee urges the government to find a solution which will protect national security whilst also protecting the rights of refugees under international law.
 6.149. The Committee notes that ASIO already, on occasion, reviews particular cases if additional information comes to light and/or on referral from DIAC. The Committee is of the view that ASIO could partly address community concerns by establishing periodic reviews of its adverse refugee security assessments.... The Committee suggests that 12-monthly reviews are a positive starting point.
6.150. Fundamentally, however, the Committee believes that extending the right of merit reviews to refugees with adverse security assessments is the most straightforward way of protecting against indefinite detention and ensuring probity. Provisions effectively barring refugees from appealing adverse security assessments were inserted into the ASIO Act in 1979 and were designed for a different time, a time when Australia was not grappling with the challenges presented by large numbers of asylum seekers in detention. Those provisions have regrettably resulted in some dramatic, potentially life-shattering consequences for refugees who receive adverse security assessments. The Committee is firmly of the view that the ASIO Act can be amended to allow for refugees and other non-citizens currently in indefinite detention to have access to relevant details of their case without impinging on national security. Merit reviews are currently available for Australian residents who receive similar adverse security assessments. On the balance of evidence gathered during the course of this inquiry, the Committee sees no compelling reason to continue to deny non-residents the same access to procedural fairness.

6.151 The Committee recommends that the Australian Government and the Australian Security Intelligence Organisation establish and implement periodic, internal reviews of adverse Australian Security Intelligence Organisation refugee security assessments commencing as soon as possible.

6.152 The Committee recommends that the Australian Security Intelligence Organisation Act be amended to allow the Security Appeals Division of the Administrative Appeals Tribunal to review the Australian Security Intelligence Organisation security assessments of refugees and asylum seekers.

Attorney General Roxon is in the US this week being feted for her anti-tobacco stand and wasn't available to respond to questions on this subject from The Age which also reports the ALP national conference last year passed a resolution calling for an independent review of ASIO assessments.

It's complicated of course but primarily requires looking secrecy in the eye and saying, all things considered, nay. I'm afraid there is nothing to engender great confidence.

In another context the Attorney has on her desk an application from the National Archives Authority to issue a certificate under s 36 of the Archives Act that would require evidence regarding an application for review of a decision to refuse access to 34 year old documents held by the NAA to be given in secret, in the absence of the applicant and his legal representative. (This ABC report and others in March didn't quite get it right.)

The documents, requested by Dr Clinton Fernandes of the University of NSW, are communications from the late Tom Critchley then Australian Ambassador to Indonesia following a visit to Indonesian administered East Timor in 1978 that gave rise to press reports at the time of shocking conditions. The certificate was sought on grounds that disclosure would prejudice the security, defence or international relations of Australia-take your pick as to which applies.

Fernandes' reply dated 3 May to the letter from the AG's department seeking comment about the application reads:

I am aware from  prior experience that you will accept whatever advice the intelligence agencies give you. You will issue the public interest certificate reflexively. You should be aware, nevertheless, that in the 1970's the people of East Timor suffered the largest loss of life relative to population since the Holocaust. You will effectively be blocking information about genocide.