CHAPTER 3
KEY ISSUES
3.1
The Bill was generally supported by submitters and witnesses to the
inquiry.[1]
This chapter discusses some of the key issues commented upon in submissions and
evidence, namely:
- the importance of a right to merits review for people who are
eligible for protection visas, but who have received an adverse security
assessment;
- the establishment of the position of special advocate in
proceedings before the Security Appeals Division in the Administrative Appeals
Tribunal (AAT); and
- the recent introduction by the Australian Government of the
position of Independent Reviewer of Adverse Security Assessments (Independent
Reviewer).
Merits review in Administrative Appeals Tribunal
3.2
Submissions welcomed the Bill's proposed amendments which would provide
a right to merits review in the AAT for 'eligible protection visa persons'.[2]
3.3
Professor Ben Saul, the Sri Lanka Justice Forum and Liberty Victoria all
described the circumstances in which these eligible persons currently find
themselves as a 'legal black hole'.[3]
As Professor Saul summarised:
The result is that an affected person [is] unable to know the
case against them and thus unable to effectively challenge the unknown allegations;
enjoying no right at all of merits review; and enjoying only a legal fiction of
judicial review. On receiving adverse assessments, the Department of
Immigration and Citizenship refuses to grant the recognised refugees protection
visas and administratively detains them ostensibly pending removal from
Australia 'as soon as reasonably practicable'. The problem then is that as
refugees they cannot be safely returned to their home countries of persecution,
and no safe third country has agreed to take any – not least because they have
been adversely assessed as security risks by Australia...[T]he High Court
confirmed the constitutional validity of indefinite detention, such that most
of the 50 refugees in detention have now been there between two and three years
since the first arrivals in 2009.[4]
3.4
The Sri Lanka Justice Forum argued in favour of the right to merits
review:
Without this right to merits review, legitimate refugees are
being held in detention indefinitely as the result of the impasse between our
non-refoulement obligations and the restriction against allowing these persons
to live in the community. This is a clear violation of our obligations under international
law and we believe the proposed amendments will provide some alleviation to
this situation.[5]
3.5
Professor Gillian Triggs, President of the Australian Human Rights
Commission, also supported the right to merits review:
Australian citizens, or holders of either a valid permanent
visa or a special purpose visa, can seek review of an adverse security
assessment in the Administrative Appeals Tribunal. The findings of the AAT are
binding upon ASIO and subject to judicial review. There does not appear to be
any reasonable justification for excluding refugees from accessing this
existing review mechanism.[6]
3.6
The NSW Council for Civil Liberties commented that the expansion of the
jurisdiction of the AAT 'would allow a truly independent review of the initial
decision made by ASIO, approaching the matter afresh, within a quasi-judicial
setting and handing down a binding decision'.[7]
Role of the special advocate
3.7
In her Second Reading Speech, Senator Hanson-Young explained the reasons
for, and role of, a special advocate in the AAT proceedings:
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 [adverse security assessment] review
hearings in the AAT if there are national security reasons to exclude the
refugee from accessing the written reasons for the [adverse security
assessment]. 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 [adverse security assessment] 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.[8]
3.8
The establishment of a special advocate role in certain proceedings to
review security assessments in the AAT was commented on by many submissions and
witnesses.[9]
While there was some support for the introduction of special advocates, participants
in the inquiry also expressed reservations about using special advocates in
proceedings in the AAT.
Support for a special advocate
3.9
Some submissions specifically supported the introduction of a special
advocate.[10]
Professor Saul explained that the special advocate is a mechanism for balancing
security interests with an individual's right to a fair hearing:
The overall purpose of the special advocate is to assist the [AAT]
or the court to review (on the merits and law respectively) the evidence against
a person, by independently testing it when the affected person and their
lawyers cannot see all of it for security reasons.[11]
3.10
Humanitarian Research Partners contended that special advocate measures would
'substantially ameliorate problems of procedural unfairness and natural justice
in the current regime'.[12]
3.11
The Australian Human Rights Commission also welcomed the establishment
of the role of special advocate as 'crucial in safeguarding the rights of an
individual where they are unable to access relevant information'.[13]
3.12
The Administrative Appeals Tribunal also made a submission to the
inquiry, which stated that the introduction of a role such as special advocate
'would not appear to create any practical or procedural concerns for the [AAT]'.[14]
Concerns about the use of a special
advocate
3.13
Some submissions and witnesses expressed reservations about the introduction
of a special advocate role in Australia, including:
- the restriction on communication between the special advocate and
the applicant (and the applicant's legal representative);
- controversy over the use of special advocates in the United
Kingdom; and
- other limitations on, and alternatives to, a special advocate.
Restrictions on communication
3.14
One specific issue that some submissions referred to as a matter of
concern was the restrictions in the Bill on the communications between the
special advocate and the applicant.[15]
The Law Council of Australia summarised this issue as follows:
Essentially, communications are unlimited before the
documents for the proceeding are provided to the Special Advocate. After that
time, the Special Advocate may only communicate with the applicant to confirm
receipt of a written communication from the applicant. Any other communication
between the Special Advocate and the applicant must first be authorised by the
presiding Presidential Member of the AAT and is subject to a veto by the
Attorney-General who may issue a certificate to bar the proposed communication.
The Attorney-General's veto power is non-reviewable by the AAT, if it has been
exercised on the basis that the communication would prejudice security or the
defence or international relations of Australia or because it would involve the
disclosure of deliberations or decisions of the Cabinet, a Committee of the
Cabinet or the Executive Council.[16]
3.15
The Law Council argued:
The manifest limitation with this proposed procedure is that,
without the Attorney-General's consent, the Special Advocate is only allowed to
communicate with the review applicant before the Special Advocate has any
knowledge of the specific case against the applicant. Therefore, the Special
Advocate's ability to identify factual inaccuracies in the evidence relied
upon, or to deny or explain an activity or statement attributed to the
applicant or to adduce evidence which contests a particular version or
interpretation of events, is very restricted.[17]
3.16
The Gilbert and Tobin Centre of Public Law agreed:
In the context of the current Bill, it seems likely that the
Attorney-General would regularly issue certificates on the ground of national security...If
this proves to be the case, then there will be few opportunities for the presidential
member to use his or her discretion to authorise communication between the Special
Advocate and the applicant.[18]
3.17
Liberty Victoria offered the following criticism:
The attempt to bring refugees' rights on par with that of an
Australian citizen by giving access to information is hindered by s39D(6)(a) of
the AAT Act, which gives the Attorney General a non-reviewable power to deny a
Special Advocate permission to communicate with the applicant (or their
representative) on whose behalf they are advocating, if the Attorney General
has certified that the communication would be adverse to national security.
Liberty Victoria submits that such a wide non-reviewable power is not in the
public interest...
While the review processes proposed are a step towards
creating a fair judicial system for refugees, the secrecy behind these reviews
can again leave too much power in the hands of a small unreviewable sect.
Administrative reviews undertaken pursuant to proposed amendments to [proposed
new subsections] 39D(6), (8), (11), and (12) of the AAT Act would be kept
secret by all parties as a result of the duty of strict confidentiality imposed
by those sections. Although some of the information should be kept secret in
the national interest, such absolute secrecy is contrary to the public interest...[19]
Special advocates in the United
Kingdom
3.18
In her Second Reading Speech, Senator Hanson-Young indicated that the
special advocate mechanism has been used in New Zealand, Canada and the United Kingdom
and that the special advocate provisions in the Bill are modelled on
New Zealand's law.[20]
3.19
Professor Saul argued that Australia should draw on the experiences of
other countries in introducing a special advocate function:
There is no one-size-fits-all model that other liberal
democracies use. But the special advocate procedure is pretty common. It exists
in Britain, Canada and New Zealand. Its operation is increasingly well known in
those places. For Australia to go off and create its own [unique] mechanism
would suffer from the disadvantage of not being able to draw on that
well-worn practice in other jurisdictions.[21]
3.20
On the other hand, a number of submissions referred to criticism of
special advocates in the United Kingdom.[22]
For example, the Gilbert and Tobin Centre of Public Law argued that the use of
special advocates in the United Kingdom remains contentious, particularly among
the legal profession:
Individual Special Advocates have resigned at various stages
citing the scheme to be unworkably unfair, and those who have persevered have
complained about the prohibition on communication with the [applicant] and
their legal representative once closed material has been disclosed, the lack of
access to independent experts or evidence, and the inability to call witnesses.[23]
3.21
At the public hearing, Mr Keiran Hardy from the Gilbert and Tobin Centre
of Public Law acknowledged that the Bill does appear to attempt to address some
of the 'widely perceived deficiencies' in the United Kingdom through the
proposed power to authorise communications. However, Mr Hardy noted that this
authorisation power 'may have little practical utility in situations where the
Attorney-General certifies that the proposed communication would be contrary to
the public interest'.[24]
3.22
In an answer to a question on notice, the Attorney-General's Department
informed the committee that 'international experience with special counsel and
special advocates has shown them to be of some value, but they are not without
their drawbacks'.[25]
Other matters
3.23
The Immigration Advice and Rights Centre, noting the dissatisfaction
with special advocates in the United Kingdom, stated that it preferred a system
where the applicant's lawyer is granted a security clearance to view all
classified material.[26]
A number of other submissions also criticised the special advocate model
as casting unfair aspersions on the integrity of an applicant's lawyers.[27]
For example, Australian Lawyers for Human Rights (ALHR) argued:
ALHR accepts that, theoretically, there may be times where
parts of an [adverse security assessment] may contain information which can
legitimately be withheld from an asylum seeker because of broader concerns about
national security or policing. However, given that Australia needs to ensure a
'fair...competent, independent and impartial' process, ALHR considers there would
be problems if information is withheld from even the person's lawyer. [ALHR
notes] Australia's legal system has been able to accommodate various situations
where a party is not provided with all the information but their advisers or
the proceedings still enable sufficient disclosure for a credible process to
continue.[28]
3.24
Liberty Victoria questioned the need to limit the appointment of special
advocates to those who already have a security clearance:
It would be preferable if a person was capable of appointment
as a Special Advocate if they have a security clearance, or receive one before
relevant material is provided to them. By this means, a person seeking review
would be able to choose a legal representative (subject to that person
receiving a security clearance). It is undesirable that the Special Advocate
selected should come from a list effectively controlled by government.[29]
3.25
On this point, the Attorney-General's Department noted that 'as there
are usually only a small number of special advocates[,] conflict of interest
issues may arise'.[30]
Independent Reviewer of Adverse Security Assessments
3.26
Many submissions referred to the Australian Government's appointment of
the Independent Reviewer of Adverse Security Assessments (Independent Reviewer)
in October 2012.[31]
3.27
The appointment of the Independent Reviewer was seen by some as a
positive step by the government. For example, Professor Triggs stated that the
appointment of the Independent Reviewer 'is an important acknowledgement
that there needs to be greater transparency and accountability in the
application of the ASIO security assessments to asylum seekers and refugees'.[32]
3.28
However, Professor Triggs, as well as a number of other contributors to
the inquiry, identified several shortcomings in relation to the Independent
Reviewer process, particularly when compared with the model of merits review by
the AAT in the Bill.[33]
Specifically, witnesses and submissions referred to the fact that the
recommendations of the Independent Reviewer are not binding.[34]
3.29
Professor Saul expressed concern about the amount of information which
may remain undisclosed to the applicant, even after the Independent Reviewer
process:
In the [Independent] Reviewer process, unclassified written
reasons will be provided by ASIO but only where a person seeks independent
review and then only to the extent not prejudicing security. Certainly
disclosure may be improved in some cases...
Most importantly, ASIO may still determine that it is not
possible to disclose any meaningful reasons or information to a person...There is
no minimum content of disclosure in all cases, potentially resulting in some
refugees knowing nothing of the case against them, and limiting the
effectiveness of their ability to defend themselves.
The [Independent] Reviewer's decision also cannot disclose
anything to the person that would prejudice security, so the person may remain
in the dark even after their review.[35]
3.30
Professor Saul also criticised the Independent Reviewer process as being
'far less protective' than the special advocate procedure in other
jurisdictions:
The [Independent] Reviewer will have access to all
information relied on by ASIO in making an assessment...[The Independent Reviewer
process] reposes in one inquisitorial person the task of both reviewing the
materials and making decisions about them.
By contrast, a Special Advocate assists a tribunal or court
to reach an independent decision in a more typical adversarial context. The [Independent]
Reviewer process is imbalanced because no-one with access to all of the
information is advocating the cause of the person, and the person can remain
largely in the dark about the evidence against them.[36]
3.31
In addition, the Sri Lanka Justice Forum and Professor Saul argued that
the 12-month interval between the periodic reviews by the Independent Reviewer
is too long.[37]
Attorney-General's
Department's response
3.32
The Attorney-General's Department's submission compared the process in
the Bill with the Independent Reviewer process, and in doing so addressed some
of the areas of concern regarding the Independent Reviewer process. The
Attorney-General's Department noted that the government had considered a 'range
of options' before deciding to establish the position of Independent Reviewer.[38]
3.33
On the issue that the recommendations of the Independent Reviewer are
not binding:
The [Independent] Reviewer's role is to consider all the
available material and form an opinion as to whether the adverse security
assessment is an appropriate outcome. The Reviewer provides her opinion and any
recommendations to the Director-General of Security. Unlike the AAT, the [Independent]
Reviewer's decision is not binding on ASIO. However, the Terms of Reference
require a copy of the [Independent] 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 [Independent] Reviewer's
findings. The [Independent] Reviewer is also required to maintain statistics
for reporting purposes, which will be included in ASIO's Annual Report to
Parliament.[39]
3.34
The Attorney-General's Department noted that the process of review by
the Independent Reviewer is 'intended to be a relatively quick and informal process,
with no formal hearings'.[40]
In terms of the procedure for the reviews:
The Independent Reviewer will have access to all the material
available to ASIO and capacity to receive submissions from the applicant and
from ASIO. The [Independent] Reviewer will have access to the same material
that would be available to the AAT if it were conducting a review. It will be a
matter for the [Independent] Reviewer to determine how she conducts reviews,
but it is envisaged that the [Independent] Reviewer will be able to speak with
relevant ASIO officers about the material and the original security assessment
decision, and also check that there is no new information available that might
have a bearing on the case. The [Independent] Reviewer will also invite
submissions from the applicant, and may decide to seek further material or
speak with the applicant should she consider it necessary for the purpose of
her review.[41]
3.35
On the issue of 12-monthly periodic reviews, the Attorney-General's
Department explained:
While the periodic review function is to occur at 12 monthly intervals,
this would not preclude ASIO from considering new relevant information at any time
and issuing a new security assessment in the event that the new information
changed ASIO's original assessment. This has always been the case. Having a
specific periodic review process just provides a mechanism to ensure that there
is a formal process to check for any new relevant information and review of the
security assessment where people remain in immigration detention pending third
country resettlement.[42]
Committee view
3.36
At the outset, the committee would like to commend the Australian Government
for establishing the position of Independent Reviewer of Adverse Security
Assessments in October last year. This represents a significant enhancement of
the rights of non-citizens to have their adverse security assessments reviewed,
since such a right did not previously exist in Australia.
3.37
The committee considers that the right of refugees to seek independent
review of adverse security assessments is of such importance that it should not
merely be an administrative process. In the committee's view, the review
process conducted by the Independent Reviewer of Adverse Security Assessments
should be enshrined in legislation to ensure that any changes to that process
are considered and determined by the parliament, rather than at the discretion
of the executive of the day. The committee is therefore recommending that
the Australian Government introduce stand-alone legislation as soon as
practicable to specifically provide for the role, responsibilities and
functions of the Independent Reviewer of Adverse Security Assessments.
3.38
In this context, the committee notes that submitters and witnesses to
the inquiry identified as a significant drawback to the review process the fact
that the Independent Reviewer's decisions are not binding on ASIO. As the
committee understands, however, the Independent Reviewer is yet to make any
recommendations to ASIO. In view of the fact that the Independent Reviewer
process is still at such a preliminary stage, the committee is reluctant to
take any firm position as to whether the current process should be legislated
in that precise form; but does consider as a matter of principle that making
the Independent Reviewer's decisions binding would further enhance the
integrity and independence of the role. The committee would expect the government
to take into consideration this point in the development of any legislation to provide
for the position of the Independent Reviewer. The committee would also expect
that the government undertake a critical examination of the current process to
ensure that any appropriate enhancements or refinements to the role or
responsibilities of the Independent Reviewer are included in the
legislation.
3.39
In relation to the Bill itself, the committee supports the intention to
provide people to whom Australia owes protection obligations under
international law – but who are currently in immigration detention due to an
adverse security assessment – with access to merits review in the Security
Appeals Division of the AAT. In particular, the committee acknowledges the
important point made by the President of the Australian Human Rights Commission
that although Australian citizens, holders of valid permanent visas or special
purpose visas can seek review of an adverse security assessment in the AAT,
there does not appear to be any reasonable justification for excluding refugees
from accessing this type of review.[43]
3.40
The committee also notes that the Joint Select Committee on Australia's
Immigration Detention Network and the Inspector-General of Intelligence and
Security have previously recommended that refugees with adverse security
assessments be entitled to merits review of those assessments in the AAT.[44]
3.41
Given the significant impact that adverse security assessments have on
the lives of refugees, the committee is of the view that the Australian
Government should take the lead on this issue and introduce its own legislation
to provide for merits review of adverse security assessments. In developing
such legislation, the government should give consideration to concerns raised during
the committee's inquiry in relation to the Bill. In particular, the committee
considers that the submissions of the Gilbert and Tobin Centre of Public Law,
Australian Lawyers for Human Rights, and the Law Council of Australia provide a
useful insight in relation to how best to balance the right of an applicant to
a fair hearing with national security issues.
3.42
While strongly supportive of the merits review aspect of the Bill, the
committee has reservations about some of its other features. The committee is
particularly concerned at the evidence it has received that the position of the
special advocate may be unduly restricted by limitations on his or her ability
to communicate with the applicant. Accordingly, the committee has reached the
conclusion that the Bill should not be passed.
Recommendation 1
3.43
The committee recommends that the Australian Government enshrine in
stand-alone legislation the role, responsibilities and functions of the
Independent Reviewer of Adverse Security Assessments. Such legislation should specifically
acknowledge and maintain the independence of that position.
Recommendation 2
3.44
The committee recommends that the Australian Government amend the Australian
Security Intelligence Organisation Act 1979 to provide refugees who have
received an adverse security assessment from the Australian Security
Intelligence Organisation with a right to merits review of that assessment in
the Security Appeals Division of the Administrative Appeals Tribunal. In
developing this legislation, the committee recommends that the Australian
Government give consideration to the concerns raised in evidence to this
inquiry as to how best to balance the applicant's right to a fair hearing with
maintaining national security.
Recommendation 3
3.45
In light of concerns raised during this inquiry about certain aspects of
the legislation, the committee recommends that the Senate should not pass the
Bill.
Senator
Trish Crossin
Chair
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