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Introduced into the Senate on 10
October 2012
By: Senator Hanson-Young
Committee view
1.2
The committee seeks further information from Senator Hanson-Young on
various provisions in the bill before forming a view on the compatibility of
the bill with human rights.
Purpose of the bill
1.3
This bill amends the Australian Security Intelligence Organisation
Act 1979, the Migration Act 1958, and the Administrative Appeals
Tribunal Act 1975 to:
- establish a requirement that ASIO review an adverse security assessment (ASA)
every 6 months or on referral from Department of Immigration and Citizenship;
- ensure that, unless statutory exceptions apply, refugees who received an
adverse security assessment are able to access the written reasons for their
ASA;
- remove the exclusion of non-citizens from seeking merits review of ASAs
in the Administrative Appeals Tribunal (AAT); and
- establish a new role of Special Advocate who can appear in ASA review
hearings in the AAT where the ASIO Director-General or Attorney-General assert
there are national security reasons to exclude the refugee from accessing the
written reasons for the ASA or general information as to the evidence upon
which the reasons are based. The Special Advocate would be a security cleared
third party appointed by the AAT upon need.
Compatibility with human rights
1.4
The statement of compatibility states that the bill does not negatively
impact on any human rights but positively engages the following human rights:
1.5
Prohibition against arbitrary detention in article 9 of the
International Covenant on Civil and Political Rights (ICCPR): the statement
states that ‘the bill seeks to enhance [the right against arbitrary detention]
in relation to asylum seekers who are given ASAs and remain in immigration
detention [by requiring] reasons to be given for ASAs and the right to appeal
them in the AAT. The Special Advocate is a mechanism to allow these rights to
be upheld while protecting national security interests’.
1.6
Right to a fair hearing in article 14 of ICCPR: the statement
states that ‘the bill seeks to enhance the right to a fair hearing by requiring
reasons for ASAs, providing for their regular review and allowing ASAs to be
appealed. Under current law it is a discretionary decision of the Minister as
to whether a person can know the reasons for an ASA and asylum seekers are
explicitly exempt from appealing an ASA decision’.
1.7
Procedural rights for non-citizens subject to expulsion in article 13
of ICCPR: the statement states that ‘the bill maintains the ability of the
government to protect Australia’s national security through the Special
Advocate provisions while affording due process to non-citizens who may be
subject to expulsion’.
1.8
The committee notes that the proposed measures in the bill will
strengthen the review framework that currently applies to individuals who are
defined as ‘unlawful non-citizens’ under the Migration Act and who are subject
to an ASA, and as such would substantially improve the overall consistency of
the ASA regime with the identified rights. However, several elements of the
bill would appear to constitute prima facie limitations of these rights.
In particular:
1.9
Restrictions on communication between the Special Advocate and the
applicant: Human rights standards require that a detained person must be
able to effectively communicate with their legal representative, whether in
relation to civil or criminal proceedings. While a Special Advocate is not the
applicant’s formal representative (new section 39C(4)), their function is
nevertheless to protect the interests of the applicant in circumstances where
the applicant and their legal representative are required to be absent from the
proceedings (new section 39C(3)). New section 39D(3) governs how and when the
Special Advocate may communicate with the applicant and their representative.
Essentially, communications are unlimited before the documents for the
proceeding are given to the Special Advocate. After that, the Special Advocate
may only communicate with the applicant to confirm receipt of a written
communication from the applicant (new section 39D(10). Any other communication
between the Special Advocate and the applicant must first be authorised by the
president of the AAT (new section 39D(5)) and is subject to a veto by the
Attorney-General who may issue a certificate to bar the proposed communication
if it is considered to be contrary to the public interest on specified grounds
(new section 39D(6). The Attorney-General's veto power under section 39D(6) is
largely non-reviewable (new section 39D(7)).
1.10
Secrecy provisions: new section 39D(11) establishes a disclosure
offence, which in effect permanently bars a Special Advocate from disclosing
any information relating to their appointment as a Special Advocate. The
offence is punishable by a maximum term of 2 years imprisonment. The necessity
for such a broad disclosure offence is unclear. In addition, under new section
39D(12), a Special Advocate may not be required to disclose any information
relating to their appointment in any future court proceedings. The relevant
issue here is whether the information warrants blanket protection in preference
to the right of a litigant to be able to adduce relevant evidence in some
matter before a court or whether the discretion should reside in the courts,
subject to some directions as to how and when sensitive information should be
put into evidence.
1.11
The committee proposes to write to Senator Hanson-Young to seek a
justification for these provisions before forming a view on the compatibility
of the bill with human rights.
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