CHAPTER 1

CHAPTER 1

INTRODUCTION

Referral of inquiry

1.1        The Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 (Bill) is a private senator's bill introduced by Senator Sarah Hanson-Young on 10 October 2012.[1] On 11 October 2012, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 5 February 2013.[2] The reporting date was subsequently extended to 30 April 2013.[3]

Purpose of the Bill

1.2        In her second reading speech, Senator Hanson-Young referred to the circumstances of individuals who have been found by Australia to be owed protection under the Refugee Convention 1951 but, due to an adverse security assessment by the Australian Security Intelligence Organisation (ASIO), are being held indefinitely in Australian immigration detention:

As it stands, a person with an [adverse security assessment] 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 [adverse security assessment] could be relied on as a reason to refuse them their protection visa. The [adverse security assessment] obstructing the grant of [a] protection visa is itself unreviewable and the reasons for the negative assessment are never disclosed to the affected person.[4]

1.3        The Bill seeks to amend the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Administrative Appeals Tribunal Act 1975 (AAT Act) and the Migration Act 1958 (Migration Act) to:

[B]ring 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 [the] Minister for Immigration respectively are based on up-to-date, correct and appropriately tested evidence.[5]

New position of Independent Reviewer of Adverse Security Assessments

1.4        On 16 October 2012, the then Attorney-General, the Hon Nicola Roxon MP, announced that the Australian Government was establishing the position of Independent Reviewer of Adverse Security Assessments (Independent Reviewer or Reviewer), to provide an independent review process for those assessed to be a refugee but not granted a permanent visa as a result of an ASIO adverse security assessment.[6]

1.5        The Terms of Reference for the Independent Reviewer set out the process involved in the review of an adverse security assessment (ASA). The Independent Reviewer will:

1.6        The Attorney-General's Department's submission notes that the Independent Reviewer's recommendation is not binding on ASIO. However:

[T]he Terms of Reference require a copy of the Reviewer's opinion to be provided to the Attorney-General, the Minister for Immigration and Citizenship and the Inspector-General of Intelligence and Security (IGIS). This reporting requirement ensures that ASIO is accountable to relevant Ministers and the IGIS for any subsequent decision as to whether or not to accept the Reviewer's findings. The Reviewer is also required to maintain statistics for reporting purposes, which will be included in ASIO's Annual Report to Parliament.[8]

1.7        During the inquiry, an officer from the Attorney-General's Department provided the committee with the following update on the Independent Reviewer's work:

Our understanding is that there are 55 eligible applicants at this stage. [The Independent Reviewer] has written to people who are eligible for review notifying them of their entitlement to seek review and attaching the relevant paperwork. In fact, all the eligible people have applied for independent review. The Independent Reviewer has received 18 unclassified summaries of reasons from ASIO so far. All of these have been distributed to eligible applicants and their legal representatives. The Reviewer has received written submissions in respect of two of the applicants to date. There are two other submissions expected, although they are overdue. [The Reviewer] is giving some flexibility there. The Reviewer expects to hear oral submissions for two applicants from whom written submissions have been received sometime in the week beginning 15 April [2013].[9]

1.8        With respect to how the role of the Independent Reviewer relates to the measures in the Bill, the Attorney-General's Department has noted that the Bill provides a 'different mechanism' to achieve a review process for persons who are owed protection, but who are the subject of an adverse security assessment.[10]

Conduct of the inquiry

1.9        The committee advertised the inquiry in The Australian on 24 October 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon. The committee also wrote to over 50 organisations and individuals, inviting submissions by 14 December 2012. Submissions continued to be accepted after that date.

1.10      The committee received 20 submissions, which are listed at Appendix 1. All submissions were published on the committee's website.

1.11      The committee held a public hearing on 22 March 2013 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.12      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.13      References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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