An OpenLetter to the AttorneyGeneral, the HonNicola Roxon

TheHon Nicola Roxon MP AttorneyGeneral

DearMinister

Thereare currentlyover 50 peoplein immigrationdetention in Australiawho havebeen found to be refugeesbut havereceived adverse security assessments from the AustralianSecurity and Intelligence Organisation(ASIO). These are peoplewho the Ministerfor lmmigrationaccepts are entitledto our protection,but theyface the prospectof remainingin detentionfor life becauseof the ASIOassessments. The numberof peoplewho havereceived adverse ASIO assessments has increased dramatically in recent years.

Refugeeswho are adverselyassessed by ASIOare not allowedto know the evidenceor the reasoning whichunderpin the assessment.They have no rightto knowof or respondto anyevidence or allegations takeninto accountagainst them. They have no practicalway of gettingan administrativereview of these decisions,and judicial review of the decisionis practicallyunavailable as courts will not orderproduction of anymaterial upon which the decisionsare based.

A personissued with an adversesecurity assessment by ASIOwill be refuseda visaand thereforeface being detainedindefinitely in immigrationdetention in .Many poopleissued with adverse securityassessments have been detained for a numberof yearsin Australiandetention facilities and are sufferingacute mental health problems.Recently, lawyers for a !7 year old child issuedcourt proceedingsto havehim removedfrom detentionbecause his mentalcondition had deterioratedso far that he hadmade repeated suicide attempts. Onthe sameday, ASIO assessed the childas a securityrisk. Heremains in detention.

Theconsiderations which guide the processof adverselyassessing a person are not foundin the ASIOAct: they are found in regulationsmade under section37 but those regulationsare not publiclyavailable. They are not found in the AustrolionSecurity lntelligence Organisotion Regulations 1980. ASIO regards them as secret. Accordingly,adverse assessments are madeby referenceto s{cret criteriaapplied to secretevidence and by this meansa person'slife and mentalhealth can be destroyed.

ln evidencegiven to the JointParliamentary Committee on lmmigrationDetention on 22 November2OtL Mr Davidlrvine, Director General of ASIO,gave evidence that indicatedhe was stronglyopposed to allowingpeople affected by an adverseassessment a right of'review. This evidenceraises serious questionsabout Mr lrvine'ssuitability as headof our nationalsecurity agency given that he appearsto hold opinionswhich are not consistentwith those of a pluralistdemocracy. In evidencegiven to the committee,Mr lrvineraised abstract security concerns should people gi6n an adverseassessment be

NSWCouncil for Civil Libertieslnc VictorianCouncil for CivilLiberties Inc Postaladdress: PO BOXA1386 SYDNEYSOUTH NSW 1235 Postaladdress: GPO Box 3161 , 3001 Officeaddress: suite 203, 105 Pitt Street NSW 2000 Phone03 96706422 Phone:02 80902952 Fax:O2 8580 4633 [email protected] Website: Email:[email protected] Website: www.nswccl.org.au http://www. libertyvictoria. org/ entitledto a reviewof the assessment.We believethat independentand rigorousreview of the actions of administratorsis not a threattto a democracyas he seems to believe- it makesit stronger.

We note that in A v Secretaryof Staterthe Houseof Lordsstruck down a law which providedfor 'The indefinitedetention of refugeeswho were suspectedof beingterrorists and said realthreat to the lifeof the nation,in the senseof a peopleliving in accordancewith itstraditional laws and politicalvalues, comesnot from terrorismbut from lawssuch as these."2A personcan be adverselyassessed if ASIO thinkssuch an assessmentis'consistent with the requirementsof security'.'Security'is very broadly definedin the ASIOAct andis concerned not onlywith Australia'ssecurity but alsothat of othercountries. It isworth notingthat a personmay be adverselyassessed by ASIOon groundsfar lessserious than being a suspectedterrorist. We are awareof one casewhere a personwho had beenheld on Naurufor five yearswas adverselyassessed and was denieda visa;he then had a mentalbreakdown and was later favourablyassessed and given a visa. Clearlyhe couldnot havebeen suspected of anythingserious or he would not havebeen reassessed.Presumably, if he had not had a mentalbreakdown, he may have suffereda fate whichthe Houseof Lordsthought unacceptable even for suspectedterrorists.

It is fundamentalto our democraticsystem that a personshould not face indefinitedetention without beingallowed to know why, and without the abilityto challengethe factualbasis and discretionary considerationswhich are saidto supportit. We acceptthat the requirementsof securitywill sometimes make it impossibleto tell the affectedperson the detailswhich resultin an adverseassessment. lt is difficultto seewhy that person'slawyers should also be deniedaccess to the materialwhich is saidto supportsuch drastic powers. lt isalarming that Mr lrvineappears to seethis as a problem.

We urgeyou to: o lmplementlegislative change to ensue adverseASIO security assessments can be meaningfully challenged. o lmplementa review of the groundsupon which ASIOare issuingpeople with adversesecurity assessments. o Reviewthe criteriafor adverseassessments and ensure that thosecriteria are publicly available.

Thisletter was prepared with the assistanceof BruceHaig and Julian Burnside AO QC.

Yourssincerely 0q tt,e ror StephenBlanks Secretary NSWCouncilfor Civil Liberties e,'r€,e {* ProfessorSpencer Zifca k PresidentLiberty Victoria

18thJanuary 201-2

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