Australian Security Intelligence Organisation Amendment (Restoring Merits Review) Bill 2014

Australian Security Intelligence Organisation Amendment (Restoring Merits Review) Bill 2014

Text of bill

Explanatory memorandum

Mr WILKIE (Denison) (10:21): I move:

That this bill be now read a second time.
The purpose of this bill is to reinstate the right of access to the Administrative Appeals Tribunal for asylum seekers with adverse security assessments. Currently asylum seekers are denied such an appeal option because of a special carve-out for what are referred to as unauthorised maritime arrivals in the ASIO Act. The issue here today and with this bill is not that there should not be security assessments or that genuine risks to Australian national security should not be prevented from entering the community. Regrettably, it has been the case over years that a handful of people have attempted to enter Australia by irregular means, and they have been found—genuinely—to be security risks. But, at the same time, there have been many people who have attempted to enter Australia through irregular means and who have received an adverse security assessment from ASIO, only to ultimately have those adverse assessments overturned. They were found to be in error or, for whatever reason, not warranted.

So, the issue is not about whether or not we should have security assessments. The issue is not whether or not there could be a very small number of people who are genuine security risks in this country. The issue today really is one about fairness and openness. If we accept that all people are equal, and if we accept that it is a fundamental basis of our system that all people should have the right to appeal an adverse finding against them, to challenge an adverse assessment, then why on earth do we have this situation in Australia where an Australian citizen who receives an adverse security assessment is entitled to make an appeal to the Administrative Appeals Tribunal but an asylum seeker is not? The bottom line is that in our law an asylum seeker is regarded as a second-class human being who somehow is inferior and should have fewer rights than an Australian citizen. That is wrong, and this bill would remedy that by removing that carve-out from asylum seekers from the relevant part of the ASIO Act.

The situation we have at the moment, where asylum seekers do not have the right to the Administrative Appeals Tribunal, clearly puts us at odds again with our responsibilities under international law. It clearly contravenes, among other things, the International Covenant on Civil and Political Rights. I will refer to four particular sections. Article 9.1 says that no-one shall be subject to arbitrary detention. But the problem with Australian law currently is that for detention not to be arbitrary people must be sufficiently informed of the reasons for it and there must be individualised consideration of its necessity and whether less-restrictive options might be available. There also needs to be a legal right to seek effective review of the reasons for detention and the security assessment underpinning it. But Australian law contains none of these safeguards.

Article 9.2 goes on to say:

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest …
This right extends to non-criminal arrest and detention, and it will be violated when people are not adequately informed of the basis for the security assessments underpinning their detention, but, again—and this is where I get to Australian law—contains nothing to prevent such violations from occurring.

In article 9.4 the convention says:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court …
They need to be able to challenge a loss of liberty on the basis that it is arbitrary, unnecessary and disproportionate. Again, this option is not effectively the case in Australian law, so long as the carve-out exists in the ASIO Act in regard to asylum seekers.

Articles 7 says:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment …
And article 10.1 says:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
It goes on after that.

My concern here is that the current arrangement where asylum seekers are denied appeal to the Administrative Appeals Tribunal clearly puts Australia at odds with our obligation as a signatory to the International Covenant on Civil and Political Rights. It is not just international law where we are erring. Even Australia’s human rights commissioner has made comment about this. In 2013, Professor Gillian Triggs said that she strongly supports extending the right to merits review in the Administrative Appeals Tribunal to refugees who have received an adverse security assessment.

The government might say to me that I am on the wrong track and that in fact the so-called Stone review is a mechanism that does give asylum seekers with adverse security assessments a proper avenue for appealing that adverse assessment. But as welcome as the establishment of the Stone review was and is, it is still an inadequate mechanism for asylum seekers with adverse security assessments to make their case again, because while the Stone review does provide some limited oversight and review of adverse security assessments, and it is something to build on, it does not cure the process of its fundamental shortcomings in law. The Stone review, for instance, is a non-legislative process operating solely as a matter of policy, and it can be discontinued on a whim. Individuals have no legal right to petition for a review by the Stone review. So in a sense it is not actually a right of appeal. It is at the whim of whomever is running the review at the time, and the outcomes of the independent review are not binding. It does not produce decisions; it produces opinions and basically requests people to abide by them.

The government might also say, ‘But there are limitations with the refugee convention, so it needs to make these changes in Australian law,’ but that is not the case either, because the refugee convention recognises the legitimate interests of governments taking steps to protect national security and the safety of citizens. In fact, article 1(F) of the refugee convention sets out the grounds on which people can be excluded from international refugee protection on the basis of serious criminal activity—things like war crimes and crimes against humanity. Article 32 allows refugees to be expelled where they have been deemed to pose a risk to national security or public order. Article 33 of the refugee convention prevents refugees who pose a serious danger to national security or the community from relying on non-refoulment protection.

So what do we have to fear from giving these people the right of appeal to the Administrative Appeals Tribunal? Nothing at all. Let them appeal. We are not talking about a lot of people here. We are talking of only perhaps a few dozen in detention at any one time in Australia who are in indefinite mandatory detention on account of an adverse security finding. What do we have to fear from these people. If they make their appeal and the original security assessment is upheld, then Australia is quite within its rights as a signatory to the refugee convention to prohibit those people from entering the community.

I suggest that the problem here is that this is another punitive measure by a cruel government with a cruel policy. That is the bottom line here: it is punitive. It is another way of saying to those millions of displaced people and people on the move around the world that we are a tough country and we are going to be tough on you, and you had better not try to come our way. It is a punitive and cruel measure. It is not the sort of measure that a sophisticated and civilised country like Australia should be allowing.

I make the point again—and I must have said it 100 times in this place—that until Australia starts acting like a rich and civilised country and honouring the spirit and word of the refugee convention then we are going to have a terribly black mark against our name. I would like to thank the Australian Churches Refugee Taskforce for helping me develop this bill, and also the Human Rights Law Centre in Melbourne. They have both been very helpful, and both are very exercised about this matter and are firmly of the view that it is quite improper to continue denying asylum seekers access to the Administrative Appeals Tribunal. I commend the bill to the House.


Posted on

September 1, 2014

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