DISSENTING REPORT BY AUSTRALIAN GREENS

1.1        The Australian Greens introduced the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 to put in place a fair legal process for 55 refugees plus their children who are currently stranded in indefinite immigration detention due to an adverse security assessment (ASA).

1.2        These refugees are stuck in a legal black hole with no way of appealing their prolonged detention and, under current law and Government policy, no prospect of release in the foreseeable future. Many have already been detained for over 4 years and are experiencing acute mental health issues.

1.3        The Greens are deeply troubled by the predicament facing these people, and the unacceptable situation of innocent children being born and growing up in immigration detention. Australian law and policy cannot remain in this status quo when there is abundant evidence of the harm being caused, as well as clear opportunities for human rights consistent alternatives that will not compromise the important considerations of national security and public safety.

1.4        This Bill seeks to provide stranded refugees with an opportunity to seek regular independent merits review of their ASA. It seeks to ensure that this review is meaningful by providing for the appointment of a Special Advocate to view and make submissions on material the refugee is prevented from accessing. It seeks to amend the Migration Act to ensure that these refugees are not automatically regarded as ineligible for community detention. It seeks to ensure that ASAs issued in respect of people who have been found by Australia to be refugees are subject to periodic internal review and the reasons for the ASA are, as far as possible, disclosed to the refugee.[1] All of these reforms are consistent with the rule of law, but the status quo is not.

1.5        The Australian Greens note that out of the numerous stakeholders, departments and experts consulted in this inquiry process, the refugees themselves who are subject to ASAs and indefinite detention were not able to have their voices heard. In April 2013, 28 long-term refugees in detention in Melbourne staged a 10-day hunger strike that put their lives and health at great risk. At the time, they said:

We will gather together in the grounds of the detention centre and stay there until we get a solution. If the Australian Government does not release us, we ask that they kill us mercifully.

We are willing to be released into the community under strict orders if they think we are threats, which we aren't. But whatever they want we will do. But we can't keep living like this. We are not in detention. We are in a cemetery.

We don't want to die. We left Sri Lanka, Burma and Iran because we fear to die. We came to Australia to live, not die. But death would be better than the life we have.[2]

1.6        The Greens urge the Parliament to hear the voices of these people and act in accordance with human rights, the rule of law and basic decency by passing this Bill, or similar legislation, as a matter of urgency.

Significant support for the Bill

1.7        This Bill was widely supported by the witnesses appearing before the inquiry, including Civil Liberties Australia, the Australian Human Rights Commission, Victoria Legal Aid and the Asylum Seeker Resource Centre. A number of expert bodies supported the passage of the Bill as a starting point but remarked that the Bill could be amended to go even further in strenuously giving rights and fair process to refugees in this predicament, including Professor Ben Saul, the Law Council of Australia, the Refugee Council of Australia and Humanitarian Research Partners. These groups attested that this Bill is imperative as a first step to reform, even if it is requires strengthening in some aspects relating to the Special Advocate functions.

Independent Reviewer established in 2012

1.8        The Greens welcomed the Government's announcement in late 2012 of the Independent Reviewer as an important acknowledgement that, under current Australian law, there is no fair legal process for refugees to find out the reasons of their ASA or challenge the merits of the ASA. However the Greens share the unanimous concerns of the witnesses appearing before this inquiry that the Independent Reviewer has no binding powers to amend an ASA, or indeed any mandate at all over deciding where refugees who are subject to an ASA must reside.

1.9        The Australian Greens note the concern expressed by expert witnesses that the establishment of the Independent Review should not be seen as a replacement for enshrining merits review and fair processes in law. The Law Council of Australia said:

The Law Council submits that the appointment of the Independent Reviewer does not render redundant the provisions of the current Bill which provides for refugees in immigration detention, who have received an ASA, to seek merits review in the AAT. The nature of the review undertaken by the Security Appeals Division of the AAT is of a different character to that contemplated by the Government's internal review scheme.[3]

1.10      This Bill provides a more comprehensive, long term and independent merits review and internal review mechanism, and as such it should be prioritised for legislative passage. However, the Greens agree with the Committee that in the meantime, the role and functions of the Independent Reviewer should be urgently enshrined in legislation.

Consistency with international standards and equality with the rights of Australian citizens

1.11      The Greens note that in the course of this inquiry the Attorney-General’s Department was asked on notice to brief the Committee on the equivalent processes in comparative OECD nations. The response provided by the Department outlines the processes in place in other countries, where subjects of adverse security assessments have avenues to appeal their finding.

1.12      In the United Kingdom, appeals against decision of the Secretary of State in relation to national security are dealt with by the Special Immigration Appeals Commission, where a Special Advocate may be appointed to represent the interests of the appellant in sensitive cases. The functions of the UK Special Advocate are the same as the functions of the Australian Special Advocate in this Bill.

1.13      In Canada, a case in which a negative security certificate has been issued is referred to closed proceedings before that country's Federal Court in which a Special Advocate is appointed to represent the person who is the subject of the certificate. Like the Special Advocate set up by this Bill, the Canadian Special Advocate conducts the proceedings on behalf of the subject of the certificate and is able to communicate with the subject until such time as they see the confidential information upon which a certificate is based.

1.14      In New Zealand, the Immigration and Protection Tribunal hears appeals against decisions to decline a person's residence or visa, or the making of deportation orders and so on, where the Minister has formed the view that there is a public security risk. Again, in New Zealand a Special Advocate is appointed to represent the person where there is classified information.

1.15      The Greens note the submission from the Administrative Appeals Tribunal in Australia that the inclusion of the Special Advocate would not create any practical or procedural concerns for the Tribunal.[4]

1.16      Why should Australia depart from what these other nations see as fair, just and safe practice? Merit reviews are currently available for Australian residents who receive similar adverse security assessments, but denied to non-citizens. But as the rule of law must apply to all people equally, Australia should act urgently to provide redress this distinct inequality by giving non-citizens a fair, just and safe avenue for challenging their ASA in the courts.

1.17      On the balance of evidence gathered during the course of this inquiry, taking into account the important concerns of national security, the experts appearing before this inquiry argued strongly that there is no compelling reason to continue to deny non-residents the same access to procedural fairness as citizens have.

Community residence

1.18      It is imperative that the Government take action to more humanely accommodate the refugees and their children who are currently locked in indefinite immigration detention on the basis of an ASA.

1.19      The Greens note the comments of witnesses to the inquiry who said there must be a clear legislative power to compel the Minister for Immigration to consider making a residence determination for individuals with adverse security assessments.[5] It is not acceptable to leave it to the policy position of the executive of the time. The Greens accept the advice of witnesses that section 197AB of the Migration Act should be amended so that the Minister for Immigration must consider a residence determination for refugees with ASAs in immigration detention and review their detention every six months.

1.20      It is not impossible to find a balance between national security, natural justice and human rights, but at the moment that balance is not being sought by the Government. As raised by the Refugee Council of Australia:

Through its immigration detention network and Bridging Visa regime, Australia already has in place a suite of options to manage risks to the community, with the level of surveillance, freedom of movement and reporting required varying in accordance with the nature of the risk. RCOA sees no reason why a similar risk-management approach could not be applied to individuals who have received negative security findings.[6]

1.21      As noted in the Expert Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless Persons in Australia report provided to the Committee by Mr Richard Towle of the UNHCR, an 'individualised case management approach' could be adopted to ensure that all decisions to detain or remain in the community are determined by the nature and the degree of risk actually posed by an individual.[7] 

1.22      There are a range of measures that could be used to mitigate the risk factor, including increased use of more community detention, use of control orders or monitoring, use of ankle bracelets, use of reporting or bail-like conditions as appropriate to each case.

Australian Greens' view

1.23      It is unreasonable and unacceptable that there is no fair and transparent legal process for refugees with ASAs to understand and seek review of their assessment. The advice provided by the Attorney-General's Department makes it very clear that in three equivalent nations at least – United Kingdom, Canada and New Zealand – there are independent appeal proceedings with a Special Advocate function in place. 

1.24      That there are some practical complexities with the Special Advocate systems in those countries is not a good reason for Australia to refuse to have any merits review or Special Advocate system at all – in fact, pre-existing Special Advocate systems offer a good opportunity to draw on the experience of fellow nations in establishing an Australian system of merits review. We see no justification for Australia to depart from what other nations treat as a basic requirement of natural justice and the rule of law.

1.25      The Australian Greens concur with the main Committee view that the functions of the Independent Review should be enshrined in legislation to ensure that any changes to that process are considered and determined by parliament, rather than at the discretion of the executive of the day.

1.26      The Australian Greens depart from the majority Committee view on delaying this legislative action until later in the Independent Review process. The Australian Greens believe this area of reform to be of significant urgency. There are more than 60 men, women and children in mandatory indefinite detention and they simply cannot be left there indefinitely. It is our view that future generations will look back on this period of time and wonder how Australia ever left these people, in an utter absence of justice, compassion and the rule of law, stranded there at all.

1.27             Recommendation 1: The Australian Greens support the first recommendation of the majority report that the Australian Government enshrine in stand-alone legislation the role, responsibilities and functions of the Independent Review of Adverse Security Assessments, and ensure that such legislation should specifically acknowledge and maintain the independence of that position.

1.28             Recommendation 2: The Australian Greens recommend that amendments to the Bill be circulated to ensure that the Bill has the effect of amending section 197AB of the Migration Act so that the Minister for Immigration must consider a residence determination for refugees with adverse security assessments in immigration detention and review the need for them to remain in detention every six months.

1.29             Recommendation 3: The Australian Greens recommend that as a matter of urgency, on a policy basis, the Australian Government make efforts to allow people with an ASA to reside in the community, as long as the Director-General of ASIO has first provided advice to the Minister for Immigration as to the level of risk posed by the person and appropriate risk mitigation conditions have been put in place.

1.30             Recommendation 4: Complementary amendments to the Australian Security Intelligence Organisation Act should be considered to clarify ASIO's legal authority to provide a specific assessment of the potential threat posed by a person if released into community detention and to provide advice about whether and how that risk might be mitigated.

1.31             Recommendation 5: The Australian Greens recommend that the Bill be passed as a matter of urgency.

 

Senator Sarah Hanson-Young
Australian Greens

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