Wednesday, 10 October 2012
Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012; Second Reading
by leave—I table an explanatory memorandum and I move:
That this bill be now read a second time.
I seek leave to have my second reading speech incorporated into Hansard and to continue my remarks.
The speech read as follows—
I have introduced this bill to the Senate to bring transparency and fairness into how Australian law treats refugees who have received an adverse security assessment. This b ill responds to the dire circumstances facing men, women and children who have been found by Australia to be owed protection obligations under the Refugee Convention 1951 (the Refugee Convention) but, due to an adverse security assessment (ASA), are being held indefinitely in Australian immigration detention.
There are currently many refugees in Australian immigration detention who have been there for significant periods of time – some over three and a half years – with no resolution of their cases in sight. There are small children who were born and are growing up in detention.
Of course, the government must always give upmost consideration of our national security or public interest concerns identified by the Australian Security and Intelligence Organisation (ASIO). But while national security is critical, our response needs to be proportionate to the threat that the person poses.
As it stands, a person with an ASA will not be released into the community by the Minister for Immigration and, in practice, they are highly unlikely to be accepted by any third country for safe resettlement. Until a recent decision of the High Court of Australia, the ASA could be relied on as a reason to refuse them their protection visa. The ASA obstructing the grant of protection visa is itself unreviewable and the reasons for the negative assessment are never disclosed to the affected person.
This bill offers a suite of reforms that bring fairness to the law without jeopardizing the safety of the Australian community or national security. It establishes fair and accountable procedures to ensure that security assessments and related residence decisions made by ASIO and Minister for Immigration respectively are based on up-to-date, correct and appropriately tested evidence.
Countries that already have mechanisms for reviewing security decisions for citizens and non-citizens alike, such as the UK, Canada and New Zealand, are no less safe than Australia. As Professor Ben Saul has observed, 'fairness enhances security rather than diminishes it'.
On figures provided to the Senate in May 2012 there were at least 53 people in immigration detention on the basis of an ASA. This figure does not include their children, many of whom were born in Australia but are tragically caught up in indefinite detention along with their parents.
The people caught in this legal black hole cannot be sent to their home county under Australia's non-refoulement obligations under the Refugee Convention. This untenable and unfair situation is not our only option and it is time to bring due process, transparency and humanity into the law.
Responsibility for determining entry or visa grant for non-citizens rests with the Department of Immigration and Citizenship (DIAC). DIAC decides whether and when to refer a person applying for a visa to Australian Security and Intelligence Organisation (ASIO) for security assessment.
Following a security assessment, ASIO provides DIAC with one of the three findings: a non-prejudicial finding, a qualified assessment (which means that ASIO has identified information relevant to security but is not making a recommendation in relation to that prescribed administrative action) or an adverse assessment.
ASIO makes the decision on the basis of an interview with the person who has been found to be a refugee, and their own intelligence and criteria. ASIO keeps the criteria are kept secret on the basis of national security.
Refugees are being stuck in limbo in immigration detention because the following problems exist in law and policy;
(a) Once an ASA is given by ASIO, that adverse finding is very rarely reviewed by ASIO even after the passage of years and the changing of geopolitical knowledge and international facts and circumstances;
(b) The reasons and evidence for the ASA are not disclosed to the affected person or their lawyer (including even a redacted summary);
(c) The affected person has no statutory right to challenge the ASA. Unlike Australian citizens, a non-citizen is not able to seek merits review of the ASA in the Administrative Appeals Tribunal (AAT).
(d) A non-citizen can seek judicial review in in the Federal or High Court but, practically speaking, this is a hollow right. Without being able to see the reasons for the decision, it is too difficult to identify whether there has been an error of law;
(e) The law currently allows national security considerations as deemed by the ASIO Director-General to trump any procedural fairness at common law.
Once an ASA has been given, ASIO recommends that a 'prescribed administrative action' be taken, such as cancellation of a passport, or not taken, such as not issuing access to a prescribed area or not issuing a protection visa.
On receiving advice that an ASA has been given, the Minister for Immigration will not grant the protection visa and the affected refugee is then administratively detained, ostensibly pending removal from Australia as soon as practicable.
This system is excessively restrictive and unfair. It fails to balance the competing interests of national security and human rights and leads to unaccountability and lack of transparency in ASIO decision making.
It also discriminates against a group of people on the basis of their background and citizenship and does not make Australia any safer. Many of the people who are now stuck in definite immigration detention had been living safely in the Australian community for months of years before being assessed negatively and brought back to detention.
The dire circumstances in our immigration detention system
Only a very small percentage of refugees who apply for protection in Australia are given an ASA by ASIO. Refugees who receive ASAs are unable to be returned to their home country because for Australia to do so would be to breach our non-refoulement obligations as a signatory to the Refugee Convention. Despite government efforts it is also very rare for a third country (a refugee resettling country) to agree to take the person from Australia.
As the current view of the Minister is that refugee with an ASA cannot live in the community, this leaves no option for them but to remain indefinitely in detention.
This is an unsustainable and unworkable policy. A mental health crisis is looming large for the growing numbers of men, woman and children who are trapped in this legal black hole. Prolonged detention places refugees in a constant state of acute anxiety, distress, uncertainty and trauma.
The Australian parliament cannot in good faith maintain this situation. There are other, less invasive, means of managing and monitoring non-citizens to deal with any security risk they pose while still allowing them to live in the community. Those options should be investigated as a matter of urgency.
Calls for reform
Indefinite detention of refugees due to an ASA has been highlighted as a significant problem by many refugee advocates, legal experts and human rights organisations.
Professor Jane McAdam of the Gilbert and Tobin Centre of Public Law unequivocally stated to the Joint Select Committee on Australia's Immigration Detention Network that 'Australia's policy of mandatory detention undeniably violates this country's obligations under international law'. Professor Ben Saul, from the University of Sydney advised the same Committee that failing to provide people with the evidence being used against them is a violation of article 9(4) of the International Covenant on Civil and Political Rights.
The Australian Law Reform Commission has been calling for an inquiry since 2004. The human rights concerns have also been highlighted by the Australian Human Rights Commission, through complaints against Australia to the United Nations, through the UNHCR's Expert Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless People, and various legal challenges in Australian courts including the High Court of Australia.
In March 2012 the Joint Select Committee on Australia's Immigration Detention Network handed down its report with clear recommendations that the Australian government address the indefinite detention of refugees and the lack of fair review for non-citizens. The Committee's recommendations had bipartisan support between Labor and the Greens members but, as at October 2012, there has been no sign of action from the government.
About this Bill
This bill amends the Australian Security Intelligence Organisation Act 1979, the Migration Act 1951 and the Administrative Appeals Tribunal Act 1975.
It establishes a requirement that ASIO review an ASA every 6 months or on referral from DIAC. This reform will ensure that up to date information is considered on a regular basis. It will ensure that the Commonwealth agencies such as ASIO and DIAC are prompted to regularly revisit the security cases of people who are being detained in long-term detention.
This bill also amends the law to ensure that, unless statutory exceptions apply, refugees who have received an ASA should be able to access the written reasons for their ASA as Australian citizens can.
The bill also allows non-citizens to seek merits review of their ASA in the AAT. Extending the right of merit review to refugees with an ASA is the most straightforward and reasonable way of protecting against indefinite detention and ensuring probity.
As Lord Diplock explained in Mahon v Air New Zealand Ltd, procedural fairness requires that the person whose interests are affected 'not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material or probative value'. There is no good policy rationale for continuing to deny non-citizens the same access to procedural fairness that is enjoyed by Australian citizens.
National security concerns around the release of information are addressed by the creation of a new role of Special Advocate. The Special Advocate will be able to appear in ASA review hearings in the AAT if there are national security reasons to exclude the refugee from accessing the written reasons for the ASA. The Special Advocate will be a security-cleared third party appointed by the AAT. The Special Advocate will be selected from a group of lawyers with the requisite experience who have been pre-approved by the Attorney-General.
The Special Advocate will be able to access the reasons for the ASA in order to make submissions on their adequacy; test ASIO's claims that the information may not be safely disclosed to the affected refugee and make submissions on the substance of any evidence which cannot be safely disclosed to the refugee.
The establishment of a Special Advocate to assist in security decision reviews is not an untried suggestion – in fact it brings Australia into line with countries such as New Zealand, Canada and the United Kingdom. The Special Advocate provisions in this Bill have been modeled on New Zealand's law.
Finally, the bill compels the Minister for Immigration to consider ways in which the security concerns identified by ASIO might be addressed, such as through control orders or reporting conditions, so that the person can live in the Australian community. It also requires the Minister for Immigration to review his or her decision about residence determination and protection visa for a refugee with an ASA whenever ASIO conducts an internal review of the ASA, or a finding is reached in the AAT, that changes the assessment to a non-prejudicial finding.
The Report of the Joint Select Committee into Australia's Immigration Detention Network observed that 'the impossible situation these people are in is perhaps one of the greatest challenges currently facing the immigration detention system'. This bill provides a fair and safe way to rescue refugees and their families from a legal black hole.
Allowing people to test the allegations against them sharpens security decisions and focuses scarce resources on the truly dangerous. The delicate balancing of interests is a sign of living in a society that values, above all else, upholding the rule of law and human rights.
I commend this bill to the Senate.