Footnotes

CHAPTER 1 - INTRODUCTION

[1]        Journals of the Senate, No. 116, 10 October 2012, p. 3101.

[2]        Journals of the Senate, No. 117, 11 October 2012, pp 3117-3118.

[3]        Journals of the Senate, No. 123, 20 November 2012, pp 3324-3325; Journals of the Senate, No. 134, 26 February 2013, p. 3658.

[4]        Senator Sarah Hanson-Young, Second Reading Speech, Senate Hansard, 10 October 2012, p. 7853. The High Court decision referred to is the case of Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46.

[5]        Senator Sarah Hanson-Young, Second Reading Speech, Senate Hansard, 10 October 2012, p. 7854.

[6]        The Hon Nicola Roxon MP, Attorney-General, Independent Reviewer for Adverse Security Assessments, Media Release, 16 October 2012, available at: http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Fourth%20Quarter/16-October-2012---Independent-Reviewer-for-Adverse-Security-Assessments.html (accessed 11 April 2013).

[7]        'Independent Review function – Terms of Reference', Attorney-General's Department, Submission 15, pp 4-5.

[8]        Submission 15, p. 2.

[9]        Mr Geoff McDonald, Attorney-General's Department, Committee Hansard, 22 March 2013, p. 19.

[10]      Submission 15, p. 1.

CHAPTER 2 - KEY PROVISIONS OF THE BILL

[1]        Item 14 of Schedule 1 inserts a definition of 'eligible protection visa person' into subsection 35(1) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act). 'Eligible protection visa person' means a person who satisfies the criterion in paragraph 36(2)(a), (aa), (b) or (c) of the Migration Act 1958 (Migration Act), and is in immigration detention for the purposes of the Migration Act.

[2]        Paragraph 37(2)(a) of the ASIO Act. The statement does not include information which would, in the opinion of the Director-General of Security, be contrary to the requirements of security.

[3]        Explanatory Memorandum (EM), p. 11.

[4]        EM, p. 2.

[5]        Item 1 of Schedule 1 amends subsection 3(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) to insert a definition of 'special advocate' for a proceeding as a person for whom an appointment as a special advocate for the proceedings under proposed new subsection 39C(1) (item 13 of Schedule 1) is in force. Items 4-11 of Schedule 1 amend sections 39A and 39B of the AAT Act to make provision for the participation of the special advocate in those proceedings. For example, Item 4 of Schedule 1 amends section 39A(2), which deals with parties to the proceedings, to allow for a 'special advocate' to adduce evidence and make submissions.

[6]        Subsection 38A(1) of the AAT Act provides that, where an application is made for review of a security assessment and the Attorney-General has given a certificate under paragraph 38(2)(b) of the ASIO Act (that the disclosure of the statement of the grounds contained in the security assessment, or a particular part of the statement, would be prejudicial to the interests of security), then the Director-General of Security must lodge with the Administrative Appeals Tribunal (AAT) a copy of the certificate and a copy of the whole of the security assessment.

[7]        Subsection 39A(8) of the AAT Act provides that the Minister administering the ASIO Act may certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.

[8]        Subsection 39B(2) of the AAT Act provides that the Attorney-General may certify that 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: because it 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 or a Committee of the Cabinet or of the Executive Council; 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 information or the contents of the document should not be disclosed.

[9]        That is, any certificate under subsection 38(2) of the ASIO Act, or subsections 39A(8) or 39B(2) of the AAT Act.

[10]      Other than as permitted under proposed new subsections 39D(3), (4) and (5), the special advocate must not communicate with any other person about the proceedings (proposed new subsection 39D(2)).

CHAPTER 3 - KEY ISSUES

[1]        See, for example, Civil Liberties Australia, Submission 1, p. 1; Australian Lawyers for Human Rights, Submission 5, p. 1; Sri Lanka Justice Forum, Submission 8, p. 3; Refugee Council of Australia, Submission 11, p. 1; Professor Gillian Triggs, Australian Human Rights Commission, Committee Hansard, 22 March 2013, p. 1; Professor Ben Saul, Committee Hansard, 22 March 2013, p. 4; Ms Jessie Taylor, Liberty Victoria, Committee Hansard, 22 March 2013, p. 4.

[2]        See, for example, Australian Human Rights Commission, Submission 4, pp 7-8; Sri Lanka Justice Forum, Submission 8, p. 6; Refugee Council of Australia, Submission 11, p. 3; The Law Society of NSW, Submission 14, p. 2.

[3]        Submission 3, Annex 1, p. 2; Submission 8, p. 1; and Submission 10, p. 14, respectively.

[4]        Submission 3, Annex 1, p. 2.

[5]        Submission 8, p. 6.

[6]        Committee Hansard, 22 March 2013, p. 1.

[7]        Submission 12, p. 4.

[8]        Senator Sarah Hanson-Young, Second Reading Speech, Senate Hansard, 10 October 2012, p. 7856.

[9]        See, for example, Humanitarian Research Partners, Submission 2, pp 2-3; Administrative Appeals Tribunal, Submission 7, p. 1; NSW Council for Civil Liberties, Submission 12, pp 2, and 4-5; Victoria Legal Aid, Submission 16, p. 2; Professor Ben Saul, Committee Hansard, 22 March 2013, pp 5-6; Professor Andrew Lynch, Gilbert and Tobin Centre of Public Law, Committee Hansard, 22 March 2013, pp 12-13.

[10]      See, for example, Australian Human Rights Commission, Submission 4, p. 8; The Law Society of NSW, Submission 14, p. 2; Asylum Seeker Resource Centre, Submission 20, p. 2.

[11]      Submission 3, Annex 1, p. 4.

[12]      Submission 2, p. 2. See also: Sri Lanka Justice Forum, Submission 8, p. 4.

[13]      Submission 4, p. 8.

[14]      Submission 7, p. 1.

[15]      See, for example, Humanitarian Research Partners, Submission 2, pp 2-3; Sri Lanka Justice Forum, Submission 8, pp 4-5; Law Council of Australia, Submission 18, pp 15-16.

[16]      Submission 18, p. 15.

[17]      Submission 18, p. 15.

[18]      Submission 6, p. 4.

[19]      Submission 10, p. 15. Proposed new subsection 39D(11) creates an offence for unauthorised disclosure, use or recording of information by a special advocate, and proposed new subsection 39D(12) deals with disclosure of information by a special advocate in court proceedings.

[20]      Senator Sarah Hanson-Young, Second Reading Speech, Senate Hansard, 10 October 2012, p. 7856.

[21]      Committee Hansard, 22 March 2013, p. 5.

[22]      See, for example, Australian Lawyers for Human Rights, Submission 5, p. 5; Immigration Advice and Rights Centre, Submission 17, p. 2.

[23]      Submission 6, p. 3.

[24]      Committee Hansard, 22 March 2013, p. 11.

[25]      Answer to question on notice, received 4 April 2013, p. 2.

[26]      Submission 17, p. 3.

[27]      See: Liberty Victoria, which argued that the Bill 'appears to proceed on the assumption that most lawyers are untrustworthy and are not capable of maintaining information in confidence [and such] an assumption is offensive and unjustifiable' (Submission 10, pp 15-16); and Queensland Council for Civil Liberties, which described the model of special advocate in the Bill as 'an entirely unsatisfactory arrangement' (Submission 19, p. 2).

[28]      Submission 5, pp 4-5.

[29]      Submission 10, p. 15.

[30]      Answer to question on notice, received 4 April 2013, p. 2.

[31]      See, for example, Australian Human Rights Commission, Submission 4, p. 5; Liberty Victoria, Submission 10, p. 12; Refugee Council of Australia, Submission 11, pp 3-4.

[32]      Committee Hansard, 22 March 2013, p. 1. See also: Refugee Council of Australia, which acknowledged that the government has taken steps to enhance review of ASIO
decision-making through the appointment of the Independent Reviewer (Submission 11, p. 3); Sri Lanka Justice Forum, which stated that 'external review of ASIO assessments in any sense is encouraging' (Submission 8, p. 3); and Professor Ben Saul, who described the Independent Reviewer as 'an improvement' on the current situation (Committee Hansard, 22 March 2013, p. 5).

[33]      Committee Hansard, 22 March 2013, pp 1-2. See also: Professor Ben Saul, Submission 3,
pp 4-6; Australian Lawyers for Human Rights, Submission 5, p. 7; Sri Lanka Justice Forum, Submission 8, p. 3.

[34]      See, for example, Sri Lanka Justice Forum, Submission 8, p. 3; Refugee Council of Australia, Submission 11, p. 3; Professor Gillian Triggs, Australian Human Rights Commission, Committee Hansard, 22 March 2013, pp 1-2; Professor Ben Saul, Committee Hansard, 22 March 2013, p. 5.

[35]      Submission 3, p. 5. See also: Sri Lanka Justice Forum, Submission 8, p. 3.

[36]      Submission 3, p. 5. See also: Australian Lawyers for Human Rights, Submission 5, p. 7.

[37]      Submission 8, p. 3 and Submission 3, p. 5, respectively.

[38]      Submission 15, p. 1.

[39]      Submission 15, p. 2.

[40]      Submission 15, p. 2.

[41]      Submission 15, pp 1-2.

[42]      Submission 15, p. 3.

[43]      Committee Hansard, 22 March 2013, p. 1.

[44]      See Australian Human Rights Commission, Submission 4, pp 7-8; Refugee Council of Australia, Submission 11, p. 3.

DISSENTING REPORT BY COALITION SENATORS

[1]        Australian Security Intelligence Organisation, Annual Report 2011-12, p. vii.

[2]        Subsection 17(1) of the Australian Security Intelligence Organisation Act 1979.

[3]        Committee Hansard, 22 March 2013, pp 20-21.

[4]        Answers to questions on notice, received 3 April 2013, p. 4.

[5]        Australian National Audit Office, Security Assessments of Individuals: Australian Security Intelligence Organisation, Audit Report No. 49, 2011-2012, pp 19-20.

[6]        Plaintiff M47/2012 v Director-General of Security & Ors, [2012] HCA 46.

[7]        Australian National Audit Office, Security Assessments of Individuals: Australian Security Intelligence Organisation, Audit Report No. 49, 2011-2012, pp 19-20.

[8]        [2012] HCA 46.

[9]        See Gummow J, at [142]-[144].

DISSENTING REPORT BY AUSTRALIAN GREENS

[1]        Law Council of Australia, Submission 18, para 84, p. 17.

[2]        Ian Rintoul, Refugee Action Coalition, Media Release, 8 April 2013,6:30am.

[3]        Law Council of Australia, Submission 18, para 26, p. 9.

[4]        Administrative Appeals Tribunal, Submission 7, p. 1.

[5]        Australian Human Rights Commission, Submission 4, para 36, p. 10.

[6]        Refugee Council of Australia, Submission 22, para 5.2.

[7]        Expert Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless Persons in Australia report p. 8, attachment to Submission 13, United Nations High Commissioner for Refugees.