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:
- Conduct an independent review of an ASA furnished to [the
Department of Immigration and Citizenship (DIAC)] in relation to an eligible
person, where that person has made an application to the Reviewer within 60
days of receiving notice that the person is an eligible person to seek
independent review of the ASA under this process...
- Examine all of the ASIO material that was relied upon by ASIO in
making the ASA, including unclassified written reasons provided by ASIO for the
eligible person, as well as other relevant material, which may include
submissions or representations made by the eligible person. Where a submission
from an eligible person contains new information or claims, this information
should be referred to ASIO for consideration before the review proceeds.
- Upon conclusion of every review, form and record in writing an
opinion as to whether the assessment is an appropriate outcome based on the
material ASIO relied upon (including any new material referred to ASIO) and
provide such opinion to the Director-General [of Security (Director-General)], including
recommendations as appropriate.
- Provide a copy of that written opinion to the Attorney-General,
the Minister for Immigration and Citizenship and the Inspector-General of
Intelligence and Security (IGIS).
- Advise the subject of the security assessment in writing of the
outcome of the review. This will include providing a document in unclassified
form, to the extent possible without prejudicing national security as advised
by the Director-General, the Reviewer's opinion, reasons and any
recommendations made and the outcome of the Director-General's consideration of
the opinion and recommendations.[7]
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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