Lock up refugees and throw away the key?

CDU Introduction to Public Law students should be taking careful note of the current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment.  In our recent topic 9 tutorial (judicial power and separation of powers) we looked at High Court decisions in the Gypsy Jokers and K-Generation cases, which both involved legislation containing similar secret evidence provisions to the ASIO situation currently affecting refugees.

In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 234 CLR 532, despite arguments from the bikie gang that provisions of WA “anti-fortification” legislation offended the Kable doctrine, the High Court held that the taking of secret evidence did not offend fundamental notions of judicial power. It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself. Secret evidence provisions have been upheld previously (on grounds of unacceptably compromising the integrity of ongoing investigations or sources of criminal intelligence), but they have usually at least allowed the defendant’s counsel to know the evidence and be able to argue against it.

In Gypsy Jokers, the majority decided that the Court itself was perfectly capable of ensuring that justice was done; there was no need for either the party or counsel to be told. Also now see K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, which holds to similar effect that keeping evidence secret from a party and their counsel does not of itself offend basic notions of judicial power.

It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself.

More recently, the High Court has struck down aspects of more general “anti-bikie” legislation in South Australia (South Australia v Totani (2010) 242 CLR 1) and New South Wales (Wainohu v New South Wales (2011) 243 CLR 181) as offending the Kable doctrine, which forbids State parliaments from vesting in State courts powers or functions apt to undermine public confidence in the integrity, impartiality and independence of those courts.  However, both Acts contained “secret evidence” provisions similar to those held valid in Gypsy Jokers and K-Generation, and the Court did not comment adversely on those aspects of the legislation.  It seems safe to conclude that no constitutional challenge to the validity of similar provisions, including the ASIO regulations affecting refugees, is likely to succeed.

However, the practical plight in which these refugees find themselves is much more dire in human rights terms than that of bikie gangs, for whom many Australians will have scant sympathy despite the evidently draconian nature of these laws. “Rough justice for roughnecks” is a slogan familiar from old Phantom comics and which encapsulates the prevailing public attitude.  The situation of refugees in immigration detention is very different, as legal academic Spencer Zifcak explained in The Australian last week:

LAST night, about 50 people in Australia went to sleep not knowing whether they will ever be released from immigration detention.

These people have committed no crime. They have spent more than a year in detention seeking to demonstrate that they are refugees. At the end of that process, they have been found to be genuine refugees.

That is, their case that they would be persecuted if they returned to the country from which they fled has been accepted.

They had the fair and legal expectation that they would then be released so as to pursue new lives either in Australia or some third country that would accept them for resettlement.

Yet they are still locked up.

This is because, after having been determined to be genuine refugees, these 50 individuals received adverse security assessments from ASIO. Those with such an assessment must be detained, normally pending their deportation. They have an entitlement to appeal to the Commonwealth Administrative Appeals Tribunal against their continuing detention. But they cannot win.

This is because refugees who are assessed adversely by ASIO are not, in law, permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it.

The considerations that guide the process of adversely assessing a person are not found in the ASIO Act. They are found in regulations made under the act. But the regulations are not made publicly available.

Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence. We know only that a person may be adjudged as a risk if that judgment is consistent with the requirements of security.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Under national security information legislation, the federal government may require that security-related evidence be withheld from an applicant. It may also require that the evidence be withheld from the applicant’s legal representatives.

Similarly, judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk.

That is why, following the High Court’s deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque.

Zifcak’s “Kafkaesque” label is fair enough in those circumstances, but he does not propose a workable solution to the evident public policy dilemma. Presumably at least some of the adverse ASIO assessments correctly conclude that the persons concerned represent real and serious security threats to Australia.  They can’t just be released into the community if they have significant international terrorist or organised crime links, nor can sensitive intelligence information be disclosed to them that may put sources, methods or even lives at risk.

On the other hand, and despite the High Court’s rather minimalist conception of the fundamental requirements of justice, there really is a serious need for a better solution that balances the competing public policy considerations of national security and individual justice.  As Justice Brennan observed many years ago in in an early Adminstrative Appeals Tribunal decision on similar “secret evidence” provisions (Pochi):

There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Nevertheless, if an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Certainly oversight of ASIO by a parliamentary committee, which is the only real accountability constraint currently imposed, is nowhere near enough.  Like ASIO itself, politicians will inevitably err on the side of extreme caution when it comes to matters of national security and terrorism.  No-one wants to take a human rights-oriented approach in case a new September 11 or Bali bombing should occur as a result.

So what is to be done?

Human Rights Commission President Catherine Branson advances some constructive proposals in yesterday’s Age newspaper:

The Australian government has an indisputable responsibility to safeguard our national security. That is our right and what we expect and require as Australian citizens and residents. However, it is my firm belief that this sovereign duty can be realised simultaneously with the protection of human rights. And that is a belief I share with many others, including: the United Nations High Commissioner for Refugees; numerous domestic and international experts in security and refugee law; the majority of the joint select committee on Australia’s immigration detention network (which handed down its report in April of this year); and the governments of many other democracies around the world.

We must find solutions to the circumstances of people who have received adverse security assessments. And we must find them fast. The human costs being paid make not doing so untenable. …

So what can be done to create a fairer system? The simple answer to that is that there are several models and options to explore. Comparable jurisdictions, such as Britain, Canada and New Zealand, have developed more transparent and equitable systems that could guide our own approach.

And various recommendations for our domestic context have already been made – for instance by the parliamentary committee to which I have referred.

These recommendations include allowing refugees to challenge the merits of an adverse security assessment in the Security Division of the Administrative Appeals Tribunal. This would simply extend to refugees a right that already exists for Australian citizens and others. And it would not require public disclosure of sensitive intelligence.

In other countries appeals processes use special advocates who are security cleared and bound by stringent confidentiality requirements so that they can receive certain types of classified information on behalf of people deemed to pose a risk. Without such a review process, it is impossible to detect if a critical error has been made – such as a mistake over identity or a failure to identify false intelligence perhaps created maliciously.

Consideration could also be given to introducing a system of graded risk assessments. This would allow for the management of a specific risk according to how serious it is. Such an approach would probably find that a good number of people assessed to pose a risk could nonetheless safely live in a community setting with appropriate conditions or controls. These kinds of arrangements have been adopted in other countries.

As the New Zealand Court of Appeal has said, it is obvious that all risks to national security don’t call for equal treatment, and it is also apparent that different risks can be identified and distinguished.

Australia can and must do better. I firmly believe that we have the maturity, compassion and experience to protect human rights, as we must under international law, while at the same time safeguarding our national security. It will require strong political will and conviction. But there is too much at stake for us to do nothing.

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39 thoughts on “Lock up refugees and throw away the key?”

  1. Instead of the government spending billions trying to deter refugees by holding them in camps and the people smugglers making millions why doesnt the government auction off permanent residency places to the highest bidder as long as the bidder is deemed suitable eg no criminal history etc. If the public could see that asylum seekers were not a financial burden on the community then there would be less hostility to them. A less radical step is to release illegal immigrants into the community without an entitlement to social security or even medicare whilst their claims are been processed. The government is paranoid about not being able to find them if they do that. Use the US system of bond enforcers to track them down. Very efficient and makes for good cable tv viewing as well. Matt Slater.CDU Student.

    1. This (auctioning migration places) was essentially the policy of the libertarian LDP at the last federal election. The problem with it is that it implicitly conclusively assumes that there is no such thing as a genuine refugee in a Convention sense and that they are all really just “economic migrants”.

      However that is demonstrably a false assumption. Even if we assume that a proportion of people found on assessment to be refugees are actually frauds, most of them aren’t. Australia’s assessment processes are quite rigorous. Thus we are talking about people who DO face persecution, torture and death if returned to their homeland. Do we make them bid at auction? If their bid loses, do we say: “Tough cheese Abdul. You should have worked harder and saved more money. We’re sending you and your wife and kids back to be tortured and killed now. Have a nice flight!”

  2. How does it come about that they “have committed no crime”
    I am sure anybody that has travelled overseas before knows they need a visa and valid passport to enter a country. Trying to enter a country by a backdoor without a visa and possibly a passport would seem to fall short of what is normally required to enter another country. That is the requirement for a valid visa and passport must be met.
    So why is it that these “queue jumpers” have committed no crime?
    Perhaps the government should provide free asssitance for them to return to their place of origin so they can make application through the proper process and be granted a visa on their own merits, not simply on the fact that they drifted unintentionally into Australian waters on a leaky boat..

    1. “So why is it that these “queue jumpers” have committed no crime?”

      I’m far from knowledgeable on the topic but, if you have some time, the link below contains many documents that well help you answer your question in a more general and historical way. The Australian Immigration site also has some interesting documents that may be more direct. If you’re really keen the Migration Act is available on austlii but doesn’t really make for relaxing bedtime reading.
      http://www.unhcr.org/pages/49da0e466.html

  3. We seem to spend an extraordinary amount of both time & money debating, discussing & reviling refugees. What about the enemy within?

    We are not provided with data pertaining to the middle class refugees that arrive daily via international flights on travel or student visas.

    There seems to me, to be mass hysteria perpetuated by the media that the refugees in detention are our biggest threat to national security, without observing the nexus between notable political prisoners in China, Laos, and Syria & the asylum seekers in detention. We have an extraordinary capacity to comment on international issues, rather than make value decisions in our own backyard!

    The national disgrace that is indigenous health & education receives less media coverage & is certainly not a platform of federal politics sufficient to generate the media coverage that a few hundred boat people generate!

    Gays in boats is what Tony Abbott fears will bring down the country, not poor leadership or ignorant economics!

  4. Thanks Ken for this article. I think everyone of us should retweet or post on facebook. The power of social media can possibly change the situation of these extremely vulnerable people who society has either forgotten or don’t care! I for one do care!

  5. Between a rock and a hard place seems a fitting description for the decisions needed to be made in relation to ASIO blocked refugees.

    I do like the idea of special advocates, those who have the necessary security clearances, whereby review processes are at least given room for movement. Such a system would seem fair and reasonable given concerns about national security.

    However, a ‘graded risk’ assessment would, I’d think, be fraught with danger; Australia is a large and vast country and the ease with which people can become transparent to law enforcement agencies is, I believe, a risk that’s not worth it. It would be a ‘calculated risk’, but the risk would be ours and when it comes to matters of State security and I’m not sure I’d be overly happy with that.

    However, to leave such people in custody for an indefinite period is nothing short of unconscionable for any so-called first world country. Those who refer to ‘detention’ as being separate from ‘imprisonment’ need to examine their thinking.

  6. OK , to get a highly sensitive security clearence in Australia = 3 months delay on the paperwork . Therefore thats how long the detention period should be ..three months no more with a good behaviour bond , ie you commit any offence , next plane outski . As for this emotionally charge queue jumper bs ..well if one does the homework required, rather than listen to the gospel in accordance with today tonight , one would see that Pakistan , India , Malaysia and Sri Lanka are NOT refugee processing countries , nor is Malaysia or Indonesia . They are also NOT signatories to the refugee convention and they view refugees as more mouths to feed and to be moved on as fast as possible . No queue …Secondly , If I was an iranian , why risk the trip to Australia when there other countries I could dissappear into right on Irans doorstep , such as Azerbaijan , Turkey , Russia , Kazakhstan , all of which have farsi speaking minoritiesof a million or more and often very porous borders .Ditto Afghanistan , of course anyone with half a brain knows that if you get to Turkey then Greece or Romania , then you get PR there you are in schengen land , that huge borderless empire we know as the European union . Australia is simply the end of the refugee pass the buck trail rather than the initial destination of choice . Terrorism . Well I was in Northam over Christmas and they were building a massive detention centre there that makes whickam point look like a town lock up !Northam has a long history of refugee intake . The 1950s saw it take in a considerable number of Ukrainian , Estonian , Lithuanian and Latvian refugees after the war . OK , The Holocaust is one area of research I do in my spare time ..these white blond hair and blue eye refugees where often found to have been former members of the Arajs Kommando , SS Galicien and Iron Wolf . All units of collaborators with the Einsatzgruppen , which killed about 1.5 million Jews in the war . No questions of national security or concerns of terrorism or war crimes was even voiced ..Even today there is a huge wall of embarrassed silence . but when the Vietnamese , the Middle Easterners came suddenly the terrorist thing emerges … I find that distressingly hypocritical to say the least . OK , Now for that often spoken reminder of MY TAXPAYERS MONEY , Well if you are a taxpayer , fine , but its what you do as an australian citizen , dont expect a medal for paying your tax . Ive sween these people from the detention centres come to church and they are stessed out . The target policy is of course inconvenience , ie if you come here , we will delay you as long as possible as a disincentive to others ..however is this policy worth the risk ,expense and trouble especially as Aussie has a less than glorious history of letting in war criminals then sticking its head in the sand and saying a very intelligence insulting we didnt know when the evidence emerged ..? The only refugee problem we have is between our ears ..after these people come in , they generally become taxpayers and community leaders of great standing and honour , and yes they are prouder than most of this great land of ours….

  7. Matt Slater: I don’t think you really want to create a desperate underclass.. Social security, education and health care benefit the recipients and are also in the public interest – desperate people will do desperate things. That;s why its called social security – think Bentham and Mill – utility – greatest good etc.

    Thompjeff: Their visas are often taken from them by the people smugglers because anonymous people cannot be traced back to them. They don’t stop there, boat arrivals often get to Australia with nothing but what they are wearing, sans, jewellery, sans luggage, sans everything.

    1. If I was a genuine humanitarian refugee Jenny Australia would be paradise even with no social security and medicare.

  8. “How does it come about that they “have committed no crime”

    Because we are talking here by definition about people found by Australian and international law to be refugees (people who face persecution or even death on certain grounds if returned to their country of nationality). Australia is a signatory to the Refugee Convention, which obliges us to provide asylum to refugees who arrive on our shores by whatever means. The historical background is the fleeing of Jews from the Holocaust in WWII. All decent people concluded that failing to offer asylum in such situations, and forcing them back to their homeland to face death or torture, was appalling abd unacceptable in any civilised nation.

    That obligation is enacted in the Migration Act 1958, especially section
    36
    . Thus if a person claiming to be a refugee arrives on our shores, Australia is legally obliged to assess that person’s claim . If found to be a refugee, they are entitled to a protection visa as of right, unless one of the provisos listed in s36 applies (e.g. commission of serious crime etc). Accordingly such a person has committed no crime. They have simply availed themselves of a legal right that Australian law provides, and indeed that we have bound ourselves in international law to provide. OTOH if found not to be a genuine refugee the person might well have committed an offence under the Migration Act 1958, although no doubt there would then be an issue about whether they possessed the necessary mental element. Commonly they would simply be deported if their country of nationality or some other country will accept them.

    1. I am not so sure. Did any of them make enquiries at their local Australian embassy about immigrating here or being granted asylum?
      There are plenty of chances for them to visit and Australian Embassy on the way here in Thailand, Malaysia, Singapore or Indonesia. Visas can be obtained there by due process.
      A finding that they are refugees will only come after they have been found not to have a visa to enter and stay in Australia.

      1. Jeff

        About 50% of people seeking protection visas arrive here by air with valid tourist or student visas. The factors you mention just aren’t relevant to them, although there may be a real question whether they obtained their original visa under somewhat false pretences.

        The other 50% are irregular boat arrivals. They mostly come from Iran, Iraq, Afghanistan or Sri Lanka. They mostly come to Australia via Pakistan, Malaysia and Indonesia, none of which are signatories to the Refugee Convention. Moreover, these countries have a history of sometimes beating and imprisoning asylum seekers and sometimes returning them to their homeland to face persecution and death. Neither international nor Australian domestic law nor commonsense require asylum seekers to remain in a country which does not offer “durable asylum” nor to present themselves at an Australian embassy to apply for a protection visa and then wait in that non-signatory country for years until Australia decides whether or not it will take them.

        In any event, this article is not about these much wider aspects of refugee law and policy. It’s about the very specific situation of people who ARE in Australia, who ARE refugees and who ARE alleged to pose a security threat but who currently have no opportunity to defend themselves against those allegations. What should be done?

    2. Considering many (and the reality is actually ‘most’) of these boat people throw any paperwork identifying themselves overboard on the way to Australia, how can you guarantee they are who they say they are. Many refugees arrived recently (within the last 12 months) claiming they were under 18 years of age, but after x-rays were conducted it conclusively proved that they were older.
      When there is no evidence of who they are or even their age, who can you believe? Their “mother” or “father” or “wife” or “child” who they left at home? If you cannot definitively confirm who they are, how can you grant asylum on the grounds of fear of persecution or death?

      And then there is the question of criminal history. It is not for Australia to re-try these people to consider whether they had the relevant mens rea or actus reus at the time of the offence. I have no doubt that many of the prison camp guards in WWII claimed that they didnt have the required mens rea when gasing or shooting Jews. And the reality is there is the question of sovereignty. Just because the Indonesian Judiciary find Ms Corby guilty, doesnt give the Australian Gov the right to dismiss her sentence if she is ever transferred to an Australian prison. And who says that these people dont have a criminal history..oh yeah, they do.

      The principle is sound, but the threat is not simple and people don’t behave as they did in 1958. These are really difficult times (nature of threat wise) and some of these criminals are a lot smarter than you give them credit for.

    3. >>> That obligation is enacted in the Migration Act 1958, especially section
      36. Thus if a person claiming to be a refugee arrives on our shores, Australia is legally obliged to assess that person’s claim . If found to be a refugee, they are entitled to a protection visa as of right, unless one of the provisos listed in s36 applies (e.g. commission of serious crime etc).<<<

      Correct me if I'm wrong but aren't the vast majority of those seeking refuge under that section of the Act detained because they arrive without a visa or identification? Having just very recently gone through the Department's Annual Report, it seemed to me that those who seek refuge and can verify who they are and that their claim for assylum is genuine appear to make their way into the community within a reasonable time frame. That leaves those who come here in the hope for a new life but without documentation to support their claim.

      That's worth remembering too isn't it – that a claim for a right to safe haven is not unquestionable evidence either is it?

      You know, I cried like a baby watching the footage of those people fighting for their lives while the fishing boat smashed against the rocks on Christmas Island last year. It made me positively furious because I am thinking the little children and babies that drowned that day had no say at all about what their fate would be.

      Why do we even accept this mode of arrival for refugees? Isn't this the issue we most need to address … as opposed to what happens after they arrive?

      1. “Why do we even accept this mode of arrival for refugees?”
        As I’ve already noted, the reason is because the Rfugee Convention requires us assess people who arrive on our shores and make a claim for refugee status, and Australian law reflects this.

        Just as importantly, there is very little practical choice. Other countries won’t take them , even Indonesia has clearly indicated that it will not accept Australia “towing back” of boats to that country (as Tony Abbott claims he will do). Once they arrive in Australia, as a practical matter they are our problem until we assess whether or not they are genuine refugees. Asking why we accept it tacitly assumes that we have any real choice about it.

        The bottom line,which those who give undue credence to radio shockjocks and their ilk don’t want to accept, is that there will always be a problem of refugees and irregular migration as long as there are turbulent, poverty-stricken countries and major disparities of wealth between first and third world. Australia receives only a tiny fraction of the asylum seeker numbers arriving in the US, Canada, UK and Europe each year. Anyone would think it was a major problem.

  9. Thank you Ken for the article. I do not agree with a lot of what has been noted but I am also not saying that I have the answer that has eluded smarter people than me.

    Catherine Branson notes some possible recommendations, these being (in short);

    1. the ability and framework to challenge the merits of an adverse security assessment;
    2. special advocates, and
    3. graded risk assessment.

    My concerns include the following:
    – who would evaluate the merits of information that ASIO has unearthed, if not ASIO?;
    – How can you guarantee that ‘experts’ evaluating this same info have Australian’s safety at heart – isnt that the role of ASIO currently?;
    – considering the wide variety of highly sensitive info that would be made available to refugees and their advocates / counsel (from CIA / FBI, MI6 / MI5, ASIS and the like) how can you guarantee that this information would remain confidential from even the client – who could pass this info on to others potentially placing at risk current operations and operatives?;
    – what about the time it would take for a “trial”?;
    – and (selfishly) what about the cost to the Australian tax payer – for representation, evidence gathering and review, judges to hear the matter, and a place for the hearing…because it would have to be secure.

    I do not think USA agencies thought that a few citizens and immigrants taking flying lessons were a security risk at the time. Its what they did with that training that became the hazard.

    The Constitution states at s51 that “laws (are) for the peace, order and good government of the Commonwealth”, thus an implicit duty of care exists for the government and its agencies to protect its citizens. So why is it that there are some who are willing to risk this?

    The reality is the media is not provided all the facts, and so the reader is not given all the facts.

    I have “a close friend” who in her business activities has extensive first hand experience with some of these “boat” refugees. They (a boat full of men – lets say approximately 20+) were picked up out to sea dressed in women’s clothing and pretending to be females. It came out these same men had picked a dozen or more women up in Asia, killed them during the trip and threw their bodies overboard – keeping their clothes. The purpose of this story (and it is now an old one) is not to create more animosity toward boat people but to say to all that you are NEVER given the full story from the media or Government, as it is usually a quick grab at the story and used as a stick to beat the other party over the head with. And this story is not the worst of them. I also have other “friends” very closely involved with the protection of these very same Australian interests and dealing with these very same people. The fact is some of these people ARE really bad – no matter what they, their advocates and the media tell you. And just like in Australia, its the bad people that the laws are written for and there is ALWAYS an “honest” person that gets caught up in it.

    I do feel sorry for the genuine refugees that arrive by boat, but I also feel sorry for the other genuine refugees waiting in their home country for years hoping one day their family will be “saved”. These people do not have the $20,000 to pay for an illegal boat ticket.

    I live in the UAE and recently (within the last 9 months) there was an ad in one of the papers here inviting people (primarily of Pakistani, Afghani and Asian descent) to go to Australia “by boat”. This same ad listed all the Government benefits available to those who chose the journey – and they are extensive. Life here in the UAE is awesome and the UAE government does not advocate such things, but there are a lot of foreign nationals working here – approximately 85% of the population of the UAE are working expats – who will take this option up in a heart beat. Why work hard when Australia just gives you everything.

    This problem is bigger than just working on trying to process and keep safe foreign refugees quickly and efficiently. The reason for these people fleeing their homes include war, famine and other dangers to their person – inflicted or perceived. This problem is larger than just handing these people a Temporary Visa and helping them “home” once any problem has been resolved. It is larger than watching them come to Australia as we send our defense forces out to help those who stayed behind. In short (too late I know) it is larger than just trying to make yourself feel good today or tomorrow.

    Terrorism IS a danger to all and the worst part is that it can come in ANY form. It is the real refugees that my heart aches for who are caught up in the cross-fire. And no matter what, I do hope someone smarter than me can find a solution that protects and assists them.

    1. Hi Rhiannon
      You raise lots of issues, some good ones and some perhaps slightly misconceived eg scientists say the technology Australia has used to identify asylum seekers as over 18 is extremely unreliable.

      Nevertheless fake ID and false stories are a real problem. That’s one reason why it can take so long to process irregular arrivals. It isn’t possible to grant a visa until satisfied who they are and that they don’t pose a security threat.

      But the people we’re talking about in this article HAVE been identified, ARE real refugees but DO (allegedly) pose security threats. Their situation raises two problems:

      (1) How do we give them a fair opportunity to defend themselves against those allegations without compromising national security?

      (2) What do we do with them if we still conclude they ARE a threat? We can’t send them home because they would be killed, tortured etc, no other country is likely to accept them, and keeping them in prison forever is also a bad solution. There are no easy answers.

      1. Hi Ken,

        Thank you for the clarification, and I do agree that it is a very security sensitive and morally difficult decision to make (and I am very grateful that I don’t have to make it).

        It does still seem to me a real quandary when you have these people identified as “real refugees” but do “(allegedly) pose security threats”. It can be assumed that some of these same people include child militants – children that have been required to join gorilla militia groups (on fear of death), escape their country and seek asylum elsewhere. The “security threat” is that they do not know how to behave in Australian society and pose a threat to citizens primarily because they do not know how to act any better. Is “reconditioning” legal or ethical? Would the Australian community accept that these immigrants have to be “re-trained” and that Australia will be known internationally (and that they will accept the expected international condemnation that would come about) of this requirement for all refugees? I dont have an answer to that one, but it is an example of just the kinds of security concerns that could be raised. And how do you “defend” this assumption? Is it even possible? I dont think that we have an active “Minority Report” scenario available to us yet, but is it really “illegal” to not to take the risk?.

        Just food for thought of course.

  10. ‘it’s a free country’

    No its not a free country, but it could be a country where natural justice is a universal norm. The problem with natural justice is that it is natural justice for competing interests and in competitions one side loses, so it is not outcomes I am thinking about, it is processes. Procedural fairness and the rule of law is central to the concept of natural justice. As Ken points out, there are political risks involved in creating procedural fairness in a climate where terrorism is a popular concern. Thus in the words of Sir Humphrey, ‘it is a brave government’ that will create greater access to the justice system for those ASIO has deemed to be security risks, as any such action will no doubt spark hysterical headlines etc

    The Senate Committee review of the security assessment does reveal a process that is Kafka esque. Ultimately we do not know the criteria for security risk. We do know that it is not based in character and that it is not influenced by family or social circumstances. Every other aspect of our justice system takes these values into account in determining what is fair. What is differentiates these people from anyone else in the justice system? Answer: National Security. This is a vital consideration but the recommendation that the Security Division of the Administrative Appeals Tribunal could hear these matters would seem to be the next step after the Senate Committee’s review.

    Hearings by the AAT could provide the security that is essential, could also provide a forum for ASIO to review its own practice, and such hearings would be consistent with the notions of natural justice that underpin our nation..

    1. The concept of natural justice seems to be the centre of the issue here and it’s a fundamental feature of our justice system that you are able to know the case against you in order to defend yourself. As Ken notes, secret evidence provisions in anti-bikie legislation have been upheld, but as Ken also notes, there seems to be a shade of difference between bikies and refugees.

      However, national security is also a powerful concept, and in the face of an adverse security assessment, refugees are powerless to argue.

      There is currently an appeal mechanism for refugees to the Commonwealth Administrative Appeals Tribunal, but as Zifcak explains, without knowing the case against them, and without the court being able to determine the basis on which the assessment was made, due to secret evidence provisions, there is no hope of winning. This seems entirely different to a bikie who is not allowed to know some or part of the evidence against them because it may compromise an ongoing investigation.

      The proposal to allow an appeal to a special security branch of the AAT seems a logical solution that would allow refugees the same rights as others in our justice system, and allow a balance between the competing interests of natural justice and national security.

  11. Hi Rhiannon
    “It can be assumed that …”

    How? Neither we nor the subjects know anything at all about the basis for adverse security assessments, nor can we know whether the concerns (whatever they are) are justified. That’s the whole point. We can’t assume anything.

    1. Sorry for the confusion Ken, “it can be assumed” was used as a general reference, rather than using a sledge-hammer “I know first hand”, “I have been told first-hand”.

      I refer you to a story I read recently on New.Com. I cannot remember in which State the offence took place or much of the detail. A former child militant who had been granted a Protection Visa (I think) murdered a young man. He had been a party of approximately 5 teenage men. He stabbed a young man to death. One of the reasons for a lessor sentence was due to his exposure as a child to the psychological harm being a former child militant created, his inability to integrate within Australian culture, his tendency to seek out “a group” social environment, along with his tendency to gravitate to criminal activity. Is this man not a threat to Australian civilians – he was to the deceased.

      I agree with an earlier suggestion re special advocates but there are SO many security concerns that would be created just for society’s sense of “natural justice”.

      But isnt that what all of this REALLY boils down to…society feeling the need to give these people justice that they ASSUME these illegal refugees have not received before. When do civilians say “enough. Lets leave it up to the experts”? I note so many people now and in the past have refered to Australia’s military personnel as “baby killers”, have demonized the military and portrayed it and them as a bunch of sexist hotheads. I have to disclose at this point that I am the wife of a retired SASR Lft Col, so yes, I have personal experience with this one. Yet the Government we vote in sends them out to kill “undesirables” – as defined BY the Government. I have experienced lounge chair enthusiasts loudly commenting on the morality of these soldiers, questioning how could they do what they do, and verbally burning them at the stake for “protecting Australia” – as defined and ordered by their Government that thee same people voted in.

      It just seems to me that this issue MAY be yet another “burning at the stake” of those departments that are in place to protect you. THEY have been given rules and criteria for rejecting some of these refugees – by the same Government you voted in. So is it the suggestion that these people dont know what they are doing, are they acting immorally in their decision making, and are they protecting you and every other Australian citizen (including the legitimate refugees) as you would like?

      Where do you draw the line to allow these people to protect you and do their job? If a terrorist attack happened on Australian shores would people say (as they did after 9/11) “kick them all out and kill them”? How is THAT right?

      Rest assured your elected officials have made very certain that these departments know what they are doing. This may just be a situation where you think the “criminal” deserves life in gaol, and the judge thinks that the “criminal” deserves 3 years incarceration with the option of parole in 12 months, and you just cannot understand why he came to this conclusion.

      Sorry to be so dogmatic Ken. I am not trying to be argumentative, I guess I just dont believe that all Government departments are filled with immoral and heartless carnivores and that everyone arriving by boat is the victim they claim to be.

      While trying to find the details of the case above I found this website: http://www.hotheads.com.au/immigrants.htm.

      I do not support everything in this article. It just seems that it may have more palatable information for to the community to consider. As I live in the UAE and have done so now for at least 2 years I am not aware of how much info is provided to the Australian citizen, so if it is all a re-hash I apologise.

  12. Another important thing to avoid in this debate is the “fish stories” of what is and what is not the case .ie , the the amount or entitlement they are entitled to is inflated every time you hear about it ..a few examples ..20,000 for a boat ticket ? They get 7,000.00 settling in Fees , They get double payments from Centrelink , They get a job straight away . They get a house straight away , they get free this and that all on MY TAXPAYERS MONEY (here we are again , that sacred taxpayers “I deserve a victoria cross as I pay me taxes ” rant ..These are only a few of many fish stories I have heard and there are a lot of them cropping up here …I know quite a few of these people and a fair bit about their countries of origin and I dont envy them , now or when they were at home . Problem is , like a fish story , the person telling the BS has usually no way to verify the claim other than “it was from a mate who has a mate who owns a pet dog who is the freind of the pet dog of the immigration director !” or some such rubbish .Or maybe its from the Gospel in accordance with Channel 9 or 7 Central or (if you are REALLY gullible) the Crocodile Times , (MT News ) I can verify several things , one , there is no queue to jump , 2 there is no 20,000 dollar boat tickets , 3 there is no double payments from Centrelink , 4 there is no 7,000.00 settlement money ..As a man who has a large Aboriginal family , I often hear inflated accounts of what they can get ..problem is , I usually turn around and put my hat as the precurement person for the Aboriginal Corporation on metaphorically and then request that the person making the outrageous claims does a search for me and give me a list of agencies I can go to for the free houses , free cars , and on and on …If they cant provide that they are “unfreinded” to quote that Americanism .
    Guess what , they have been all Unfreinded and I still dont have my list .(Yes I have searched myself if thats what you are asking ..)
    I would request and plead with all right minded and intelligent people out there not to fall victim to the “fish story” phenomenon when discussing this matter …

  13. Thanks for posting Ken, great food for thought.

    I’m no expert here, and I obviously don’t have the solution, but I do agree that there must be some better alternative, and frankly, we (Australia) simply must do better.

    All of this reminded me of Agamben’s State of Exception (see Blackshield pp 38-40) which we covered back in week one. The extract provided in Blackshield, by Jessica Whyte (p39-40) is particularly illuminating. Whyte points out several examples within the Australian context of persons who are effectively denied what we would generally consider to be the fundamental, unchallengable legal rights which our society would normally afford to everyone. Whyte sites the Gypsy Jokers Case, Stolen Generations Case and Thomas v Mowbray, amongst others.

    As Whyte rightly points out, the justifications offered for exceptional treatment vary from case to case, and it is a matter of personal opinon whether one deems these reasons are sufficient. It is my firm belief that we must come up with a better solution

  14. I know very little about the ‘finer’ intricacies of the ‘boat people/refugees’ debate. I note that my fellow students have covered those aspects in the arguments above.

    What really concerns me is the very real and ever present threat of the denial of Natural Justice and possible incarceration for life and not just for refugees but people in Australia in general. Was our country and its society not based on Christian values and biblical notions? Whatever happened to the right to face ones accuser?

    ‘I answered them that it was not the custom of the Romans to give up anyone before the accused met the accusers face to face and had opportunity to make his defence concerning the charge laid against him.’ Acts 25:16

    Now, I am by no means religious but to me the denial of Natural Justice by ‘withholding’ evidence goes against much of what our society was based upon. How can one defend oneself without knowing the evidence to the charge?

    We all know as future lawyers that just about any piece of information can be interpreted at least two ways — that is going to be our job in the future — to argue that things mean ‘x’ when in fact they may seem to say ‘y’. So information from ASIO says that these people may be a security risk – on whose interpretation? I don’t think I could judge a person based on an argument from one side – do you?

    Advocates with security clearance seems like a logical step in the right direction. Although I would much rather see the legal representatives of the accused be privy to that information — they know or should know their clients — they are the ones who will be able to mount an argument to the information. Perhaps lawyers who work this field could apply for security clearance to allow them to be privy to the information. Although, cynical me suspects that lawyers who represent refugees with security risks will probably be denied clearance due to ‘withheld evidence’ themselves!

    Since when has it been okay to detain anyone indefinitely? Al-Kateb was a shocking case and yet we appear to have learnt nothing from it. Is that not a fundamental human right?

    We no longer live in a ‘free country’. The denial of natural justice and indefinite incarceration are evidence to that point. My opinion is that we are fast hurtling toward a Police State.

  15. Perhaps it all comes down to something as simple as the theoretical separation of powers? Policing agencies, be they actual police, immigration officers, or members of ASIO, are all members of the executive, not the judiciary.

    It seems to me, at a very basic level, and possibly somewhat naively, that police agencies should never have the final say on judicial matters; they are, in effect, evidence gatherers, not judge, jury and executioner/gaoler… But perhaps the very basic presumption of innocence really means something entirely different?

    Refugees have, are and I suspect, always will be a problem, just as indigenous issues are, and it’s up to our elected members to do something about it. To lock people up and throw away the key is nothing short of unconscionable in any civilised society.

    If our politicians put more effort into solving serious social issues such as these, rather than being so self-centred, perhaps we wouldn’t have these problems? I live in hope, but I suspect the reality will be different.

  16. Greens will move a Bill in Parliament today to allow refugees to challange adverse ASIO security assessments. abc.net.au/news/2012-05-22

  17. I think the greens are a blight on our political landscape , but on this one they have even my support ..no one should have a “star chamber” type justice system or a system a la NKVD Russia where you got a “quarter” (25 years) and didnt have access to defence , evidence , discovery , or any of the stuff needed to defend yourself , up to the “troika”(3 man court) and within an hour out the back door to Siberia!
    The current system of refugee review is no different , yes it is longer in time frame but the same denial of even basic due process is there when ASIO becomes involved or ASIS (more often than not as thats the overseas arm of the intelligence system . ) Even if my hypothetical application to the dept of dirty tricks that I mentioned in my first piece got knocked back , Id still have access to ask why …More so should people who have broken the law (undocumented arrival /illegal immigrant ) but are falling foul of far greater allegations carrying very serious jail time in Aussie merely for jumping on a boat after getting chucked out of one country to another till they literally run out of land .

  18. Now I’ve had a very quick look at the ASIO Act. You are interrupting my study plans Lucy-Anne.

    What section of the Act needs amending? s38 gives the Attorney General discretion regarding the notice etc of decision. Why then is legislation necessary to release information that could be released at the discretion of the AG who for policy reasons declines to do this.
    If this is the case – I doubt that a Bill tabled by the Greens will have any effect, except perhaps to raise awareness (love that phrase). The power to exercise due procedure already appears to be there: disclosure; merits review etc. It just needs to be applied to refugees who have been determined to be a security risk.

    1. Thank you everyone for your contributions I just wanted to add to some of the issues/ themes that have emerged from this discussion

      History

      Historical context in Australian history is that a large majority of the population are as a result as a result of migrants coming on boats as well, with the first ‘migrants’ proclaiming Terra Nullis. I always struggle with the concept of ‘queue jumpers’ as it seems to me that in Australia’s history we were never very good at forming ‘a queue’ let alone checking with the indigenous people that already lived here for permission or considering what our legal status was. It is a shame that given that historical and legal background, as a country we seem unable to address refugee issues in a calm, considered, compassionate and economically sound approach.

      Politics and Legal Issues

      It is now a well-known fact that the Howard Government came to power as a result of using refugees as a political issue based on unfounded claims of children being thrown overboard into the water. Prior to that, the issue had not gained a lot of political attention for some time. Regardless of anyone’s political views I think Australia went to a new low when politicians used children in a unsafe boat as a political football and this continues to present day unfortunately. Yes there does need to be security clearance but to place a person in a legal situation of not knowing what the charges are against them goes against all principles of natural justice. There may be security issues however the link between refugees and terrorism is an all too quick assertion/assumption in public opinion and media coverage, masterminds of acts such as terrorism come in on planes, they wouldn’t risk leaky boats and lengthy detentions.

      The ‘cost’ and alternatives

      Having worked in mental health in regional Victoria where there was a large refugee community I cannot support indefinite detention, it ends up costing ‘The Taxpayer’ more if the person is subsequently released into the community and then the already overstretched mental health system has to help pick up the pieces. A period of processing of 3 months and perhaps at most another 3 months for those deemed high security risks. I cannot see when we have examples of Australian Citizens being closely monitored in the community for security concerns why this would not also be possible for refugees to live in the community having their claims assessed where there is security concerns. The ‘Tax Payer’ cost of living in the community has been shown to be significantly less than the cost of detention. I can say first hand having lived on social security in the past it doesn’t really avail you to having the resources to leave the country! Let’s hope Australia never breaks out into civil war as then we may really know why we can’t join a ‘queue’.

    2. Have the answer: FWIW

      Comes from the Select Joint Committee on Australia’s Immigration Detention Network
      6150: ‘Provisions effectively barring refugees from appealing adverse security assessments were inserted into the ASIO Act in 1979 and were designed for a different time, a time when Australia was not grappling with the challenges presented by large numbers of asylum seekers in detention…..
      The Committee is firmly of the view that the ASIO Act can be amended to allow for refugees and other non-citizens currently in indefinite detention to have access to relevant details of their case without impinging on national security’

      So there we have it – in for ‘a mending’ – just like my long black pants.

  19. I wonder why Australia was willing to welcome Vietnamese boat people in the late 70s and early 80s, largely without questiong their legitimacy as “refugees”, but has such a massive problem accepting refugees from middle-eastern states currently?

    It would appear that 911 has had an enormous impact on refugee policy. That the social and political conditions in Afghanistan, Iraq, and in neighboring countries are so abhorrent, and yet we are unable as a nation to stand in the shoes of Mothers and Fathers, brothers and sisters who seek escape from death, terrorism, political persecution and oppression.

    The majority of these boat people are quite likely genuine refugees, and as such are entitled to the protections afforded to refugees who seek political asylum in first world nations.

    It is disgraceful that we should elect to lock up these people, possibly for the rest of their lives, given the effect of al-kateb. Our border protection policies should not serve to make worse the suffering of genuine political refugees.

    I am aware that we are now experiencing some apparent fallout from the liberal acceptance of South-East Asian refugees, by way of the drug enclaves that have been seen in Cabramatta and similar places throughout Australia. However, it is not at all settled that refugee policy is responsible for this state of affairs: Australia has chosen to be a multicultural nation – for better or for worse, criminal elements will always become established where there is a market for their activity.

    Perhaps a terrorist might enter Australia on a leaky boat, and this needs to be protected against. However, in my opinion, that terrorist is much more likely to fly into Australia on a Qantas jet, with official documentation, a nice suit and a pleasant disposition.

    I believe that our fear of the terrorist has blinded us to our humanitarian obligations.

    To state that these refugees should get on an international flight and enter the country legally is naive in the extreme. Political dissidents are often stripped of the ability to legally travel. They might be refused a passport; or they may live in a rural area – the city might not be an option for such people. I fact, when we look at the destruction that has been caused to cities like Kabul, Bahgdad and Faluja by the occupation of the coalition of the willing and their ongoing battles with militants and deposed political parties, it is unsurprising that people who might want to leave the country do so by sea, rather than risking entering the cities.

    We really can’t know what drives people to get aboard a leaky boat and then to risk the oceans in hope of finding a safe haven outside their own country, knowing that they may never be allowed entry, or that they may be detained for life, or that they may simply die in transit.

    One can only assume that such action is desperate. We should not close our hearts and minds to these people. They, like all of us, want a better life for themselves and their families.

    1. I “tweeted” David Manne asking if he could make available the originating process for this new challenge on the Internet. He hasn’t replied. Eventually the parties’ submissions will be loaded on the High Court of Australia site (see current cases) but that won’t be for a while.

      In the meantime we have to guess.

      Public law litigation does not correspond neatly to the (largely) private law notion of a cause of action. In public law you must have:

      (1) Standing, which usually means simply that you are substantially more affected by the law or administrative decision than the general community; and
      (2) a ground for judicial review of the law or administrative action i.e. that the law is unconstitutional in one or more respects or the administrative action is not authorised by the law/legislation and hence is unlawful and void. This aspect corresponds most closely with the “cause of action” concept.

      It is also necessary that the matter be “justiciable” i.e. fit for adjudication by a court (some prerogative matters and especially some involving national security may be regarded as NOT justiciable); and there must be an available remedy with no “disentitling” factors (mostly roughly equivalent to equitable concepts regarding delay/laches, unfair/dishonest behaviour/unclean hands etc).

      It appears that the refugee/s Manne et al are representing are challenging Al-Kateb‘s correctness. They may conceivably be challenging both the constitutionality of various sections of the Migration Act 1958 (Cth) (as offending separation of powers by vesting a judicial power to imprison/punish in the executive) and in the alternative the lawfulness of executive decisions made purportedly under that legislation to detain the refugees indefinitely (e.g. they may argue that the decision is vitiated by denial of natural justice, although that argument may be problematic because natural justice is a common law right that can be modified or removed by legislation that is sufficiently unequivocally clear. One suspects that the ASIO Regulations in question ARE sufficiently clear). I suspect they would be seeking relief under Constitution s 75(v) including declaratory relief e.g. a declaration that the ongoing detention of refugees without any real opportunity to obtain any form of review including judicial review of the ASIO assessment is unlawful; an injunction restraining ongoing detention; certiorari to quash the decision to keep them in custody (they probably won’t get this); and no doubt habeas corpus to actually get them out of detention.

      Al-Kateb was essentially about whether conferring on the Executive government a power to detain an asylum seeker (found NOT to be refugee but could not be returned to homeland) on an ongoing basis was an unconstitutional conferral of judicial power on the executive government. There are lots of cases holding that imprisoning/punishing someone is a solely judicial function that cannot be conferred on the Executive at federal level because of separation of powers.

      The CLR headnote to Al-Kateb explains as follows:

      Section 189 of the Migration Act 1958 (Cth) required an officer who knew or reasonably suspected that a person in the migration zone was an unlawful non-citizen to detain the person. Section 196(1) required an unlawful non-citizen detained under s 189 to be kept in immigration detention until he or she was removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. Section 198(1) required an officer to remove as soon as reasonably practicable an unlawful non-citizen who asked the Minister, in writing, to be so removed. Section 198(6) required an officer to remove an unlawful non-citizen as soon as reasonably practicable if the non-citizen was a detainee, had applied for a substantive visa that had been finally determined adversely, and had not made another valid application for a visa.

      A stateless person who arrived in Australia without a visa was taken into immigration detention. He applied for a protection visa, but his application was refused. He wrote to the Minister asking to be removed from Australia. Removal did not take place because the attempts to obtain the necessary international co-operation were unsuccessful. The Federal Court found that there was no real likelihood or prospect of removal in the reasonably foreseeable future, but that the Migration Act nevertheless required that he remain in detention.

      Held, (1) By McHugh, Hayne, Callinan and Heydon JJ, Gleeson CJ, Gummow and Kirby JJ dissenting, that ss 189, 196 and 198 authorised and required the detention of an unlawful non-citizen even if his removal from Australia was not reasonably practicable in the foreseeable future.

      Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54,[PDF] , disapproved.

      R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983, , distinguished.

      (2) By McHugh, Hayne, Callinan and Heydon JJ, Gummow J dissenting, Gleeson CJ and Kirby J not deciding, that the detention of non-citizens by the Executive pursuant to ss 189, 196 and 198 did not contravene Ch III of the Commonwealth Constitution, even if the removal of the non-citizen from Australia was not reasonably practicable in the foreseeable future. The purpose of detention under those sections was not punitive, as detention was required for the purpose of removal of non-citizens from Australia and their separation from the Australian community until that occurred.

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