By Adam Fletcher

The Government announced this week that it has chosen former Federal Court Judge Margaret Stone to be the Independent Reviewer for Adverse Security Assessments. Justice Stone is the second Independent Reviewer appointed by the Government, following the Independent National Security Legislation Monitor appointed in April last year. Obviously the roles differ, but they both involve a single, senior lawyer reviewing national security measures.

Positive Aspects

This is the first time since the ASIO Act was passed in 1979 that there has been merits review of security assessments for non-citizens. The process is a great leap forward for refugees languishing in detention on the basis of adverse assessments – and on this basis, it gets the Australian Human Rights Commissioner’s tick of approval.

In addition, the Reviewer’s Terms of Reference provide that, when someone makes an application for review, ASIO must provide that person with ‘an unclassified written summary of reasons for the decision to issue an adverse security assessment,’ which goes a long way to addressing the stark natural justice deficit which has existed to date in these cases.

Finally, regular 12-month reviews to determine whether people should still be considered a security risk will help to avoid the sad situation we saw where refugees Mohammed Sagar and Mohammed Faisal were detained on Nauru for several years, then released without ever being told why.

Issues

In my previous post on this blog, I pointed out that there is already a Security Appeals Division of the Administrative Appeals Tribunal (AAT) which was established specifically to review adverse security assessments. However, this Division does not hear appeals from ‘unlawful non-citizens’ such as the 55 refugees who are currently in detention after being denied visas on security grounds.

In addition, there is a Greens-sponsored Bill currently before Parliament – the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 – which would have allowed the AAT to hear appeals from these refugees.

Before the Parliamentary Inquiry into Australia’s Immigration Detention Network in November 2011, ASIO Director-General David Irvine said the Organisation merely operates according to the law, and is not opposed to merits review per se. He continued:

Whether IMAs or any other applicants for visas who are rejected on security grounds should be afforded merits review is essentially a matter for the government. Should the government introduce a merits review process for IMAs who are subject to adverse or qualified assessments, we will then work within that legal framework.

However, he also expressed concern for the continuing protection of information on intelligence-gathering methods, sources and so on. After weighing up the evidence provided by Mr Irvine and the other submissions to the wide‑ranging inquiry, the Parliamentary Committee recommended in its report (of April 2012) that…

…the Australian Security Intelligence Organisation Act be amended to allow the Security Appeals Division of the Administrative Appeals Tribunal to review the Australian Security Intelligence Organisation security assessments of refugees and asylum seekers (recommendation 28).

The Security Appeals Division hearings are conducted in private, and are specially designed to protect national security information.

So why did the Government decide to establish this parallel process, bypassing the courts and tribunals entirely?

The Terms of Reference attached to the media release give little away, although the long list of security requirements to which the Reviewer must adhere gives a clue – ASIO and the Government want to retain tight control over this process.

For example:

Throughout the review process, the Reviewer will obtain and adhere to ASIO’s security advice on the protection of ASIO’s intelligence capability when the Reviewer is communicating, either orally or in writing, within the public domain including directly with the eligible person, when carrying out his or her function.

ASIO’s Director-General will also be able to override the Reviewer’s assessment, although the Attorney-General claims this would be “very difficult” for him to do in practice.

There is another clue in the Attorney’s language when she says this “will not lower the bar for assessing a refugee’s risk to Australia’s national security, but will provide greater openness and accountability in the security assessment process.” The inference to be drawn is that ASIO would not be able to protect us as effectively if its assessments were subject to scrutiny by a court or tribunal, which is concerning.

International human rights law is relatively straightforward on this issue. Article 9(4) of the International Covenant on Civil and Political Rights provides that:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

This guarantee is quite precise, but for years appeals to the courts in cases involving national security information have been very restricted – especially for non‑citizens. If an adverse security assessment forms part of the justification for continuing to detain a person, it is arguable that nothing less than proper judicial review of the assessment will satisfy the requirements of 9(4).

Conclusion

Overall, this new process is a step in the right direction and the Government should be applauded for implementing it (especially in the face of what was undoubtedly significant opposition to any perceived dilution of secrecy).

However, it still falls short of judicial review, which should always be available when the consequences include (indefinite) loss of personal liberty.

It also falls short of international best practice. For example, the UK has its Special Immigration Appeals Commission which is a superior court comprising a supervising judge and experts in security and immigration, which conducts public hearings except when evidence absolutely needs to be heard in secret. As with AAT decisions, appeals on points of law from the Commission can be made to the higher courts. Although its procedures (including the requirement of security‑cleared lawyers) and the composition of its panels have been criticised over the years, the Commission is still a stronger oversight model than that which we now have in Australia.