CHAPTER 2


CHAPTER 2

KEY PROVISIONS OF THE BILL

Amendments to Australian Security Intelligence Organisation Act 1979

2.1        Part IV of the ASIO Act deals with security assessments, including furnishing of security assessments (Division 2) and review of security assessments (Division 4). Section 36 of the ASIO Act provides that Part IV does not apply in certain circumstances, including where a security assessment is made in respect of a person who is not: an Australian citizen; the holder of a valid permanent visa; or the holder of (or a person who is taken to hold) a special purpose visa.

Right to merits review

2.2        Item 17 of Schedule 1 of the Bill amends section 36 to include an 'eligible protection visa person'[1] as a category of persons to whom Part IV applies, if proposed new subsection 36(2) applies to the security assessment. Proposed new subsection 36(2) is inserted by item 18 of Schedule 1, and applies to a security assessment if it relates to a decision under the Migration Act, or regulations made under the Migration Act, as to whether:

  • to take, or refuse to take, any action necessary for an eligible protection visa person to make a valid application for a protection visa under the Migration Act; or
  • to grant, or refuse to grant, a protection visa to an eligible protection visa person; or
  • to cancel a protection visa that has been granted to an eligible protection visa person.

Notification of security assessment

2.3        Section 38 of the ASIO Act deals with notifying a person of their adverse or qualified security assessment. The notification includes a copy of the assessment (including all the information relied on by ASIO to make the assessment)[2] and information on the person's right to apply to the Administrative Appeals Tribunal (AAT) for review of the security assessment (subsection 38(1)).

2.4        Subsection 38(2) provides that the Attorney-General may certify that he or she is satisfied that:

  • the withholding of notice to a person of the making of a security assessment in respect of the person is essential to the security of the nation (paragraph 38(2)(a)); or
  • the disclosure to a person of the statement of grounds contained in a security assessment in respect of the person or of a particular part of that statement, would be prejudicial to the interests of security (paragraph 38(2)(b)).

2.5        Where the Attorney-General issues a certificate in accordance with paragraph 38(2)(a), the relevant person is not required to be notified of the security assessment as required under subsection 38(1) (subsection 38(4)).

2.6        Item 19 of Schedule 1 of the Bill amends paragraph 38(2)(a) to provide that the Attorney-General may certify that withholding a copy of the security assessment in respect of the person is essential to the security of the nation. The Explanatory Memorandum (EM) states:

This amendment allows the Attorney-General to certify in writing that [the] Director-General of ASIO cannot withhold the notice of the assessment in respect of a person who has received the adverse or qualified security assessment although ASIO can still withhold the copy of the assessment from the person.

While the Attorney-General can require that the whole or part of the assessment, or the statement of grounds, must be withheld in the interests of security or the nation, the Attorney-General cannot require the agency to withhold notice that an adverse or qualified assessment has been given, or notice of the person's review rights.

Another effect of this amendment is that all persons to whom Part IV applies will be able to make an application for review under s54 of the ASIO Act and s27AA of the AAT Act, which requires notice of the assessment to be given to the affected person.[3]

2.7        Item 20 of Schedule 1 repeals subsection 38(4), replacing it with a proposed new subsection which provides that, where the Attorney-General has issued a certificate under paragraph 38(2)(a), a copy of the security assessment must not be attached to the notice given under subsection 38(1).

Internal review of security assessments

2.8        Item 21 of Schedule 1 inserts a new Division 3 into Part IV of the ASIO Act. Proposed new Division 3 deals with an internal review of certain security assessments. The EM summarises the nature of the internal review:

[T]he Director-General of [Security] must conduct 6 monthly reviews of the security assessment of anyone who is in immigration detention on the basis of an adverse or qualified security assessment, but who is eligible for a protection visa.[4]

Amendments to Administrative Appeals Tribunal Act 1975

2.9        Section 39A of the AAT Act deals with the procedures at hearings for the review of security assessments in the Security Appeals Division of the AAT. Section 39B of the AAT Act provides that certain documents and information are not to be disclosed in section 39A proceedings.

2.10      Item 13 of Schedule 1 inserts proposed new sections 39C (Special advocate – general) and 39D (Special advocate – disclosing information and communicating with other people) into the AAT Act.

Special advocate – general provisions

2.11      Proposed new subsection 39C(1) provides that, on the request of an applicant, a 'special advocate'[5] must be appointed in proceedings in the Security Appeals Division to which section 39A of the AAT Act applies, if:

  • a certificate under subsection 38(2) of the ASIO Act in relation to the security assessment has been lodged under subsection 38A(1) of the AAT Act;[6] or
  • the Minister administering the ASIO Act has given a certificate under subsection 39A(8) of the AAT Act in connection with the proceedings and has not consented to the presence of a person representing the applicant when evidence to which the certificate relates is adduced, or submissions to which the certificate relates are made;[7] or
  • the Attorney-General has certified under subsection 39B(2) of the AAT Act that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest on the ground referred to in paragraph 39B(2)(a) (prejudice to security or the defence or international relations of Australia).[8]

2.12      The function of the special advocate is to protect the interests of the applicant before the AAT when:

  • the assessment or any other information that is before the AAT has been withheld from the applicant (proposed new paragraph 39C(3)(a)); or
  • when the applicant (or their representative) is required to be absent when evidence is adduced, or submissions are made (proposed new paragraph 39C(3)(b)).

2.13      However, the special advocate is not a representative of the applicant for the purposes of the AAT Act (proposed new subsection 39C(4)).

Special advocate – disclosure of information and communications

2.14      Proposed new subsection 39D(1) provides that ASIO's Director-General of Security (Director-General) must provide the following information to the special advocate 'on a day that is no earlier than 29 days after the special advocate is appointed':

  • a copy of the whole of the security assessment;
  • a copy of any certificate relating to the security assessment or the proceeding referred to in proposed new subsection 39C(1);[9]
  • a copy of any information relied on in making the security assessment;
  • a copy of any information provided to the AAT by the Director-General for the purposes of the proceeding; and
  • a copy of any evidence adduced, or written submission made, in the proceeding by the Director-General or the Commonwealth agency to which the security assessment was given.

2.15      The special advocate may communicate with the applicant or their representative about the proceedings without authorisation on an unlimited basis until the special advocate receives the information referred to in proposed new subsection 39D(1) (proposed new paragraph 39D(3)(a)).

2.16      However, once the special advocate receives the information referred to in proposed new subsection 39D(1), the applicant and the applicant's representative may only communicate with the special advocate in writing; and the special advocate must not reply to the communication, other than to acknowledge receipt (proposed new paragraph 39D(3)(b) and proposed new subsection 39D(10)).

2.17      Proposed new subsection 39D(4) provides that the special advocate may communicate with certain other people about the proceedings without authorisation, including the AAT and the Director-General.

2.18      The presidential member who is to preside at the hearing may also authorise the special advocate to communicate with the applicant, or their representative or any other person in certain circumstances (proposed new subsection 39D(5)).[10] Proposed new subsection 39D(6) provides for the Attorney-General to certify that a communication under proposed new subsection 39D(5) would be contrary to the public interest:

  • because it would prejudice security or the defence or international relations of Australia (proposed new paragraph 39D(6)(a)); or
  • because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council (proposed new paragraph 39D(6)(b)); or
  • for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the content of the communication should not be disclosed (proposed new paragraph 39D(6)(c)).

2.19      Proposed new subsection 39D(8) provides that the presidential member may authorise the communication under proposed new subsection 39D(5) where:

  • the Attorney-General has certified in accordance with proposed new subsection 39D(6) that the communication would be contrary to the public interest, but the certificate does not state a reason referred to in proposed new paragraphs 39D(6)(a) or (b) (proposed new paragraph 39D(8)(a)); and
  • the presidential member is satisfied that the interests of justice outweigh the reasons stated by the Attorney-General (proposed new paragraph 39D(8)(b)).

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