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Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012

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2010-2011-2012

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

Migration and Security Legislation Amendment (Review of Security Assessments)

Bill 2012

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 

 

 

 



 

Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012

 

Explanatory Memorandum

 

OUTLINE

 

The Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 introduces fairness into Australian law for refugees who have received an adverse security assessment.

 

It amends the Administrative Appeals Tribunal Act 1975 so that non-citizens who are eligible for a protection visa (affected person) can seek merits review of their security assessment in the Administrative Appeals Tribunal (AAT), as Australian citizens already are able to under that Act.

 

This bill also ensures that, unless certified public interest or national security exceptions apply, non-citizens will be able to access a copy of the security assessment where there has been an adverse or qualified finding.  Where the Attorney-General deems that there is a public interest reason to withhold part of or all of the security assessment, the affected person will still receive notification that a security assessment has been made so that a challenge in the AAT remains a possibility.

 

Where there is a public interest or national security reason to withhold part or all of the security assessment from the affected person, the bill establishes a new role of Special Advocate who can appear in the AAT. The Special Advocate will be appointed by the presidential member of the AAT on a per needs basis from a pool of security cleared, pre-approved and experienced legal advocates. The Special Advocate is distinct from the affected person’s lawyer - they will appear on the behalf of the person but not necessarily on their instruction. The Special Advocate will play an important role in the proceeding in the AAT, in that they can be present to access and hear all evidence and submissions, but must not communicate any classified details back to the affected person. In order to fulfil their role of representing the affected person, the Special Advocate has a full month to take instructions on the facts prior to receiving a copy of the security assessment.

 

This bill also amends the Australian Security Intelligence Organisation Act 1979 so that the Director-General of ASIO (or their delegate in the department administering the ASIO) must conduct 6 monthly reviews of the security assessment of anyone who is in immigration detention on the basis of an adverse or qualified security assessment, but who is eligible for a protection visa. 

 

It also ensures that where an adverse or qualified assessment occurs, the affected person will be notified of the assessment within 14 days of it being made. This is in aid of enhanced transparency so that the affected person may take up their right to challenge the assessment in the AAT.

 

Finally, this bill amends the Migration Act 1958 so that the Minister for Immigration must consider the making a residence determination for a person who has been found to be a refugee but has an adverse or qualified security assessment. This is to address the situation that, on a policy basis, anyone in this situation is currently stuck in indefinite immigration detention. This amendment requires the Immigration Minister to consider ways in which the security concerns identified by ASIO might be addressed so that the person can live in the Australian community. The bill also amends the Migration Act 1958 so that when an adverse security assessment is overturned by an internal review at ASIO or through merits review at the AAT, the Immigration Minister must revisit the decision about the refusal or cancellation of a protection visa.

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 specifies the short title of the bill (when enacted).

 

Clause 2 - Commencement

 

Clause 2 provides that the bill will commence on the day it receives Royal Assent.

 

Clause 3 - Schedule

 

Clause 3 provides that each Act that is specified in the Schedule to the bill is amended or repealed as set out in the Schedule.

 

Schedule 1 contains amendments to the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), and the Migration Act 1958 (the Migration Act).

 

 

Schedule 1- Review of security assessments

 

Part 1 - Amendments to the Administrative Appeals Tribunal Act 1975

 

Item 1   Subsection 3(1)        

Item 1 inserts a new term of ‘special advocate’ and definition of ‘special advocate’ into the Interpretation section of the Act.

 

Item 2   Subparagraphs 29(1)(ca)(i) and (ii)

Item 2 amends the subsection of the Act that prescribes the documents which an applicant must include with their written application to the AAT for review of an adverse or qualified security assessment .

 

Item 2 repeals subparagraphs (i) which requires that an applicant must include a copy of the adverse assessment and (ii) which requires that an applicant must include a statement identifying the part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made.

 

Item 2 substitutes the subparagraphs with (i) which requires that the applicant include a statement indicating any part or parts of the assessment of which the applicant is aware with which the applicant does not agree and (ii) a statement setting out the grounds on which the application is made.

 

Item 3   Subsection 38A(1)

This amendment is consequential on the amendments to section 38 of the ASIO Act.

 

Item 4    Subsection 39A(2)

Item 4 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

Item 4 relates to the existing prescription of who are the parties to the proceeding (the Director-General of Security and the applicant) and who may adduce evidence.

Item 4 repeals the words specifying that the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions and the Director-General of Security must present all relevant information.

Item 4 substitutes words specifying that evidence can be adduced and submissions made by the Commonwealth agency to which the security assessment is given and the special advocate.

Item 5   Subsection 39A(4)

Item 5 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 5 relates to the existing procedure wherein the presidential member who is presiding at the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of discussing the conduct of the review.

 

Item 5 amends the subsection to expand the list of who may be required to attend the aforementioned discussion with presiding member to include a special advocate.

 

Item 6   Subsections 39A(6) and (7)

Item 6 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 6 relates to the existing procedure around when the parties may be present in the hearing to hear the other parties’ submissions or evidence.

 

Item 6 repeals the existing subparagraphs which allow the Director-General of Security and the applicant or their respective representatives to be present to hear each other’s submissions or evidence, unless the Minister has certified that the evidence cannot be disclosed due to national security as per subsections 39A(8) and (9).

 

Item 6 amends the subsection so that:

           

At (6)

The applicant and their representative may be present during the Director-General or Commonwealth agency’s submissions or evidence unless the Minister has certified that the evidence cannot be disclosed due to national security as per subsections 39A(8) and (9).

 

The special advocate may be present during the Director-General or Commonwealth agency’s submissions or evidence regardless of whether the Minister has certified that the evidence cannot be disclosed due to national security as per subsections 39A(8) and (9).

 

            At (7)

The Director-General or their representative, the Commonwealth agency’s representative and the special advocate may be present during the applicant’s submissions or evidence.

 

            At (7A)

The Director-General or their representative and the Commonwealth agency’s representative may be present during the special advocate’s submissions or evidence (being made on behalf of the absent applicant).

 

Item 7   Subsection 39A(13)

Item 7 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 7 relates to the existing procedures that requires that the Tribunal must permit the applicant to make submissions and adduce evidence if they so want.

 

Item 7 adds a new subsection that also requires the Tribunal to permit a special advocate for the proceeding to make submissions and adduce evidence.

 

Item 8   Subsection 39A(16)(a)

Item 8 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 8 relates to the existing procedure which requires the Tribunal to allow the party who first gives their evidence to revisit their evidence and submissions once they have hear the evidence and submissions of the other party.

 

Item 8 expands the rebuttal opportunity to include the party who first addresses the Tribunal or a special advocate who first addresses the Tribunal.

 

Item 9   Subsections 39A(16)(b) and (c)

Item 9 follows on from Item 8 in relation to the mechanisms for responding to the other party’s evidence.

 

Item 9 clarifies the words of the subparagraphs because of the inclusion of the special advocate at Item 8.

 

Item 9 repeals the references to the ‘other party’ and substitutes with the subparagraphs prescribing that whomever out of the parties or the special advocate first addresses the Tribunal as per the new subsection (a).

 

Item 10   Subsection 39A(16)

Item 10 is a consequential amendment to Items 8 and 9.

 

Item 10 removes the terminology ‘the first mentioned party’ and replaces it with ‘the person mentioned in paragraph (a)’ of subsection 39A(16).

 

Item 11   Subsection 39B(4)

Item 11 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 11 relates to provisions around when certain documents and information are to be disclosed, or not disclosed, in proceedings. The general rule stated at subsection 39B(3) is that a person who is required by or under the Act to disclose information or to produce the document for the proceeding is required to do so, and the Tribunal is required to ensure that the document is kept confidential and will be returned to the person.

 

However under subsection 39B(4), the Director-General of Security or his or her representative are excluded from having to disclose documents to the Tribunal if the Attorney-General has certified in writing that the information would prejudice security or the defence or international relations of Australia, involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council or 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. These exemption criteria are iterated at subsection 39B(2).

 

Item 11 extends the exemption from disclosure to a special advocate appearing for an applicant.

 

Item 12   Subsection 39B(11)

Item 12 amends a procedure for the conduct of the hearing for a review of security assessment in the Security Appeals Division of the Tribunal.

 

Item 12 clarifies that it is the general duty of the Tribunal, regardless of the existence of a public interest certificate, to ensure that ‘information is not communicated or made available to a person contrary to the requirements of security’.

 

Item 12 inserts text to effect an exception to this duty, so that the Tribunal is not under a duty to withhold information from the Director-General of Security, or his or her representative, or the special advocate.

 

Item 13   Special Advocate - General

Item 13 inserts provisions to govern the appointment of the new role of the Special Advocate to appear for an applicant in a review of security assessment in the Security Appeals Division of the Tribunal.

 

At (1)

This subsection requires the presidential member to appoint a special advocate, on the request of the applicant, if applicant is not able to directly access the reasons for the adverse security assessment. This could happen in three ways:

a.        The Attorney-General has issued a written certificate saying that withholding the security assessment is essential to the security of the nation, or the disclosure of the security assessment or part of it would be prejudicial to the interests of security, or

b.       The Minister administering theASIO Act has issued a written certificate saying that evidence or submissions of the Director-General of Security or relevant Commonwealth agency cannot be disclosed on the public interest bases of security or defence of Australia.

c.        The Attorney-General has certified that the information would prejudice security or the defence or international relations of Australia

 

At (2)

Subsection (2) provides that the applicant need not consent to the person appointed.

 

At (3)

Subsection (3) outlines the function of the Special Advocate, which is to protect the interests of the applicant when

a.        The assessment or other information has been withheld from the applicant

b.       When the applicant is required to be absent during submissions or adducing of evidence.

           

            At (4)

Subsection (4) clarifies that the Special Advocate is not taken to be a representative of the applicant for the purposes of the Act. This reflects the fact that the applicant may also have a lawyer as well as a special advocate, as they two would play distinct legal roles. The applicant’s lawyer, for example, would be subject to the same information prohibitions under a public interests certificate as the applicant.

 

At (5)

Subsection (5) outlines the powers of a special advocate. The Special Advocate may

a.        Inspect any document that the Tribunal proposes to have regard to in the proceeding

b.       Make oral and written submissions with respect of those documents or any other information which a public interest certificate may apply to

c.        Participate in and cross-examine witnesses who testify during any part of the proceeding where the applicant or their representative are not entitled to be present.

 

At (6)

Subsection (6) refers to three procedural provisions in the Act which, in the existing legislation, refer to directions that may be given to a ‘party’.

 

This subsection clarifies that where those provisions refer to a party, ‘party’ should also be taken to include any special advocate.

 

At (7)

Subsection (7) iterates the qualifications that a special advocate must possess. The presidential member may only appoint a special advocate if they

a.        Have been enrolled as a legal practitioner for at least 5 years

b.       Have appropriate knowledge and experience to perform the functions, and exercise the powers of a special advocate

c.        Has been security cleared to the satisfaction of the Secretary of the Department administering the ASIO Act and that clearance has been communicated to the Tribunal

d.       Consent to being appointed.

At (8)

Subsection (8) requires the Secretary of the Department administering the ASIO Act to establish a public register of potential special advocates.

 

At (9)

Subsection (9) bestows on the special advocate immunity from civil action or any proceeding in relation to their performance of the role of special advocate.

 

At (10)

Subsection (1 prescribes that the Commonwealth must pay remuneration and allowances, as prescribed in regulations, to the special advocate for their role in the proceeding.

 

At (11)

Subsection (11) inserts provisions relating to the termination of a special advocate.

a.        The appointment of a special advocate must be terminated if on the applicant’s request, or if the special advocate loses their legal registration, or if the special advocate’s security clearance is no longer deemed valid by the Secretary of the Department responsible for administering the ASIO Act, or if the presidential member is satisfied that it is in the interests of justice to terminate the appointment regardless of the view of the applicant.

b.       If the termination is at the request of the applicant, there will not be another special advocate appointed.

c.        If the termination is for reasons other than the applicants request then a new Special Advocate must be appointed by the member.

 

Item 13   Special Advocate - disclosing information and communicating with other people

 

The insertion of these new provisions governs the information that may be disclosed to the special advocate.

 

At (1)

These provisions require that 29 days after being appointed, the Special Advocate will be given by the Director-General of ASIO the materials iterated including a copy of the whole of the security assessment and any information that the Tribunal has been given for the purpose of the proceeding by ASIO or the Commonwealth agency.

 

This means there are 29 days in which the Special Advocate can communicate freely with the applicant because they have not yet seen the classified documents. These provisions are based on New Zealand’s model and timeframe.

 

At (2)

These provisions bar the Special Advocate from communicating with anyone about the proceeding unless it is with the applicant and their lawyer (in the terms outlined by 3 and 4), or a person who is expressly authorised by the presidential member presiding over the hearing.

 

At (3)

These provisions govern how and when the Special Advocate can communicate with the applicant and their representative. Before the documents for the proceeding are given to the Special Advocate, communications are unlimited (29 days). After that, the Special Advocate may only confirm receipt of the documents for the proceeding.

 

At (4)

These provisions allow the Special Advocate to communicate with the Tribunal, the Director-General of ASIO or their representative, and any other person for basic administrative matters but not substantive material (such as Tribunal staff).

 

At (5)

These provisions allow the Special Advocate to communicate with the applicant under very carefully managed circumstances, including when the request is made to the presiding member, with the proposed communication in writing and the Commonwealth agencies do not object.

 

At (6)

These provisions allow the Attorney-General to issue a certificate that would bar the proposed communication between Special Advocate and applicant, on the same basis as a certificate under s39B(2) of the ASIO Act.

 

At (7)

These provisions require the Attorney-General to give the Special Advocate written notice of the intention to issue a certificate, and reasonable time to make submissions to the Attorney-General in relation to the certificate.

 

At (8)

These provisions allow the presidential member to overrule an Attoney-General’s certification under subsection (6) of the ASIO Act if a reason referred to in paragraph (6)(a) or (b) is not stated on the certificate, and the member is satisfied that it is in the interests of justice.

 

At (9)

These provision indicates the intention of this Act that communications between the Special Advocate and the applicant are desirable for the effective conduct of the proceeding but the public interest matters raised in the certificate must attract due regard.

 

At (10)

These provisions confirm that the applicant or their representative may unilaterally submit a written communication to the Special Advocate after the 29 day period has ended and the Special Advocate has the documents in the proceeding, but the Special Advocate may only confirm receipt of the communication and nothing more.

 



 

At (11)

These provisions establish that it is an offence if any unauthorised disclosure, use or recording of information by the special advocate occurs. The offence will carry a term of imprisonment to a maximum of 2 years.

 

At (12)

These provisions bestow immunity on the Special Advocate from having to disclose any document or information relating to their appointment in the proceeding in any court proceeding or to any person authorised by Commonwealth, State or Territory to hear evidence.

 

 

Part 1 - Amendments to the Australian Security Intelligence Organisation Act 1979

 

Item 14   Subsection 35(1)    

Item 14 inserts into the Security Assessments Interpretation section of the ASIO Act the definition of an ‘eligible protection visa person’, being a person who has been found to be in need of protection under the Migration Act under the Refugee Convention or complementary protection, and who is in immigration detention for the purposes of the Migration Act.

 

A person will be covered by this definition even if they are prevented by the Migration Act from making a valid visa application.

 

Item 15   Subsection 35(1)    

Item 15 inserts into the Security Assessments Interpretation section of the ASIO Act the definition of the federal Immigration Minister.

 

Item 16   Subsection 36

Item 16 amends the part of the Act which excludes certain persons, including non-citizens, from being able to seek review of their security assessment.

 

Item 16 is consequential amendment on the insertion of a new subsection at into this section.

 

Item 17    At the end of paragraph 36(b)

Item 17 amends the part of the Act which excludes certain persons, including non-citizens, from being able to seek review of their security assessment.

 

Item 17 adds a category of persons - eligible protection visa persons - whom the part does apply to. Therefore, a person who has been found to meet the protection criteria outlined in the Migration Act as per the definition would be able to access review of their security assessment under this amendment.

 

Item 18   At the end of section 36

Item 18 amends the part of the Act which excludes certain persons, including non-citizens, from being able to seek review of their security assessment.

 

Item 18 inserts provisions that build on the intention of Item 17. Item 18 clarifies that if a person who is an eligible protection visa person has been subject to a decision under the Migration Act or Regulations to grant, refuse or cancel a visa, then they are a person who the Security Assessments Part IV of ASIO Act does apply to.

This amendment covers people who are prevented by s46A of the Migration Act (and similar provisions in the Migration Act) from making a valid application for a protection visa.

 

Item 19   Paragraph 38(2)(a)

Item 19 relates to the provisions that govern when and how a person, or people, may be notified about the making of a security assessment.

 

Barring certain exclusions, a person who has been subject to an adverse or qualified security assessment should be notified of the assessment within 14 days and provided with information about their ability to apply to the AAT for review of the assessment. 

 

Item 19 amends one of the exclusionary paragraphs. This amendment allows the Attorney-General to certify in writing that Director-General of ASIO cannot withhold the notice of the assessment in respect of a person who has received the adverse or qualified security assessment although ASIO can still withhold the copy of the assessment from the person.

 

While the Attorney-General can require that the whole or part of the assessment, or the statement of grounds, must be withheld in the interests of security or the nation, the Attorney-General cannot require the agency to withhold notice that an adverse or qualified assessment has been given, or notice of the person’s review rights.

 

Another effect of this amendment is that all persons to whom Part IV applies will be able to make an application for review under s54 of the ASIO Act and s27AA of the AAT Act, which requires notice of the assessment to be given to the affected person.

 

Item 20   Subsection 38(4)

Item 20 relates to the provisions that govern when and how a person, or people, may be notified about the making of a security assessment.

 

Item 20 repeals the existing provisions which state that a notice of security assessment must not be given if the Attorney-General has given the Director-General a certificate. It replaces with provisions stating that the copy of the assessment must not be given with the notice of the security assessment.

 

Item 21   After section 40

Item 21 inserts a new Division into the ASIO Act relating to the internal review of certain security assessments.

 

At (1)

This provision inserts a new subsection 50 into the ASIO Act that requires the Director-General of ASIO to review the adverse security assessment, or a qualified security assessment, after an adverse or qualified assessment has been already given to the Immigration Minister or Department of Immigration, if:

           

a.        The assessment relates to a person who is eligible for a protection visa, and

b.       There has been a decision made under the Migration Act or Regulation in relation to the granting, refusal or cancellation of a protection visa to the person.

 

At (2)

This provision governs the time frame in which the review must occur. It requires the Director-General of ASIO to review an adverse or qualified security assessment within 6 months after the following points in time:

a.        After an assessment has been given to the Immigration Minister or the Department of Immigration; or

b.       After the Director-General of ASIO has already reviewed the assessment after the original assessment and has affirmed the adverse assessment; or

c.        After the Director-General of ASIO has varied the assessment; or

d.       After the Director-General of ASIO has ordered a new assessment, set aside the original assessment and substituted the new assessment.

 

At (3)

This provision clarifies that if an affected person is no longer an eligible protection visa person then there is no requirement on the Director-General to conduct a 6-monthly review of the adverse or qualified assessment.

 

At (4)

This provision relates to the conduct of a review by the Director-General of ASIO. It prescribes that s37 of the ASIO Act, and regulations made under it, shall apply to the review in the same way as those provisions applied to the original decision.

 

S37 of the ASIO Act provides that an adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement shall contain all information that has been relied upon by ASIO in making the assessment and would be, in the opinion of the Director-General, contrary to the requirements of security. 

 

At (5)

This provision establishes the steps that may be undertaken by the Director-General of ASIO once the review of the security assessment has occurred under this Division.

 

The Director-General may affirm or vary the original assessment, or the Director-General may set aside the assessment and make an entirely new one.

 

At (6)

This provision establishes the communication that must occur between ASIO and the Immigration Minister if an assessment is made upon review that departs from the pre-existing assessment.

 

If the assessment is varied, or if it is set aside and replaced, the Director-General must write to the Immigration Minister to advise the Immigration Minister of the variation or change.

 

At (7)

This provision covers any possible overlap between the 6 monthly review cycle and an application that may have been made to the AAT by the affected person.

 

This provision clarifies that both processes are distinct and may occur simultaneously. Under this provision, the Director-General is required to review the assessment even if there has been an application made to the AAT for:

 

a.        Review of the assessment by ASIO, or

b.       Review of the findings on the Tribunal on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review.

 

Item 22   Division 4 of Park IV (heading)

 

  Item 2 amends the heading of Division 4 of Part IV from ‘Review of Security Assessments’ to ‘Review of Security Assessments by Tribunal’. 

 

 

Part 1 - Amendments to the Migration Act 1958

 

Item 23   At the end of section 197AB

Under s197AB of the Migration Act, the Immigration Minister may determine that a person is to reside at a specified place rather than being held in a detention centre. Item 23 relates to residence determinations made by the Immigration Minister relating to person who have received an adverse or qualified security assessment.

 

The criteria established by Item 23 are that the Minister must have regard to whether any threat to security can be addressed at a place other than immigration detention, and any other matters the Minister considers relevant. This would give rise to consideration of alternatives to prolonged immigration detention such as bail conditions, monitoring or a control order.

 

Item 24   At the end of section 197AD

Under s197AD of the Migration Act, the Immigration Minister may vary or revoke the Minister’s earlier residence determination.

 

Item 24 clarifies that when the Minister is considering varying or revoking the residence determination of a person on the basis of an adverse or qualified security assessment, the Minister must have regard to whether any threat to security can be addressed at a place other than immigration detention, and any other matters the Minister considers relevant. This would give rise to consideration of alternatives to prolonged immigration detention such as bail conditions, monitoring or a control order.

 

Item 25   After section 501K

Item 25 inserts provisions to require the Immigration Minister to review a protection visa decision in respect of a person who received an adverse or qualified security assessment if, upon review, a person’s security assessment is no longer considered by the Director-General of ASIO to be either adverse or qualified or the AAT, in reviewing the security assessment, has made findings that supersede the original assessment.

 

It inserts the heading as follows:

501L   Review of protection visa decision if security assessment changed

 



 

At (1)

A person who will be affected by this new provision must be in immigration detention; must be eligible for a protection visa under various conditions in the Migration Act;  and must have been subject to a decision (in this case, by the Immigration Minister) relating to a grant, refusal or cancellation of a protection visa.

 

The trigger for the operation of this subsection is when the Immigration Minister receives either a notice from the Director-General that the latter has varied the original assessment of a person or substituted with a new section, or, when the Immigration Minister receives a copy of the findings of the AAT that are in favour of an applicant seeking review of a security assessment.

 

At (2)

This insertion specifies that the Immigration Minister must reconsider their decision about granting a protection visa.

 

The Immigration Minister may affirm the original decision, or revoke the decision and grant the protection visa.

 

If the original decision was to cancel a protection visa, any revocation of the original decision will mean that the cancellation never happened and the visa will come back into force. However if the original decision was to refuse to grant a visa, subparagraph (b)(ii) clarifies that a visa should be granted (because no visa was granted in the first place).

 

            At (3)

This subsection confirms that if the Minister revokes the original decision, the original decision is taken not to have been made.

 

At (4)

This subsection clarifies that despite the operation of s501L(3) the detention that spanned from the time of the original decision by the Immigration Minister not to grant the protection visa, and the revocation of the original decision, was lawful.

 

 

At (5)

This insertion clarifies that upon receipt of a new assessment or a favourable AAT ruling relating to a security assessment, when the Immigration Minister reconsiders a decision not to grant a protection visa, the Immigration Minister is required to give notice to the affected person about the existence of the new decision.

 

At (6)

This insertion clarifies that a decision by the Minister relating to the granting, refusal or cancellation of a protection visa is reviewable under the Act.

 



 

Part 2 - Application of Amendments

 

Item 26  Application of  amendments - review of qualified or adverse security assessments

Item 26 lists the application details of the amendments in this bill relating to the review of adverse security assessments.

 

            At (1)

The amendments of Part IV of the ASIO Act will apply to any security assessment given by ASIO after commencement.

 

At (2)

The amendments of Part IV of the ASIO Act  will apply to any security assessment given by ASIO before commencement, as long as the assessment relates to a person who is eligible for a protection visa at the time of the commencement and subject to the modification set out in subitems (3) and (4).

 

At (3)

 

This subitem ensures that, if the amendments of Part IV of the ASIO Act apply to an assessment made before commencement because of subitem (2), the person who is the subject of the assessment is to be given notice of the assessment and of the person’s right to apply to the Administrative Appeals Tribunal for review of the assessment.

 

At (4)

This subitem provides that, if the amendments of Part IV of the ASIO Act apply to an assessment made before commencement because of subitem (2), the period of 6 months within which the assessment must be internally reviewed under section 50 of the ASIO Act starts to run from commencement.

 

Item 27  Saving of certificates

Item 27 clarifies that any certificates issued under section 38 of the ASIO Act before commencement continue in force after commencement as if they were made under section 38 as amended. This ensures that the amendments of section 38 made by the bill do not affect the validity of certificates issued before commencement.

 

Item 28  Application of amendments—special advocates

Item 28 clarifies which proceedings for review of a security assessment in the AAT the requirement to appoint a special advocate applies to. The requirement only applies to a proceeding for review of security assessment if:

·          A certificate under subsection 38(2) of the ASIO Act in relation to the security assessment is lodged by the Attorney-General at or after commencement; or

·          A certificate under subsection 39A(8) of the ASIO Act in relation to the security assessment is given by the Minister administering that Act at or after commencement; or

·          A certification under subsection 39B(2) of the AAT Act in relation to the security assessment is made by the Attorney-General at or after commencement.

 



 

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012

The Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview

1.1                   The purpose of the bill is to introduce transparency and fairness into Australian law as it relates to refugees who have received an adverse security assessment (ASA).

1.2                   The bill establishes a requirement that ASIO review an ASA every 6 months or on referral from Department of Immigration and Citizenship.

1.3                   The bill amends the law to ensure that, unless statutory exceptions apply, non-citizens or refugees who have received an ASA are able to access the written reasons for their ASA. The bill also removes the exclusion of non-citizens from seeking merits review of ASAs in the Administrative Appeals Tribunal (AAT).

1.4                   The bill also establishes a new role of Special Advocate who can appear in ASA review hearings in the AAT where the ASIO Director-General or Attorney-General assert there are national security reasons to exclude the refugee from accessing the written reasons for the ASA or general information as to the evidence upon which the reasons are based. The Special Advocate would be a security cleared third party appointed by the AAT upon need.

Human rights implications

1.5                   This bill does not negatively impact on any human rights but does positively engage the following human rights.

1.6                   Article 9 of the International Covenant on Civil and Political Rights provides for the rights :

·          to liberty and not to be subjected to arbitrary arrest or detention

·          to security

·          to be informed of the reason for arrest and any charges

·          to be brought promptly before a court and tried within a reasonable period, or to be released from detention, and

·          to challenge the lawfulness of detention.

1.7                   The bill seeks to enhance these rights in relation to asylum seekers who are given ASAs and remain in immigration detention. The bill provides for reasons to be given for ASAs and the right to appeal them in the AAT. The Special Advocate is a mechanism to allow these rights to be upheld while protecting national security interests.

1.8                   Article 14 of the International Covenant on Civil and Political Rights provides for the right that all persons shall be equal before the courts and tribunals and, in the determination of any rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

1.9                   The bill seeks to enhance the right to a fair determination of rights at law by requiring reasons for ADAs, providing for their regular review and allowing ADAs to be appealed. Under current law it is a discretionary decision of the Minister as to whether a person can know the reasons for an ADA and asylum seekers are explicitly exempt from appealing an ADA decision.

1.10               Article 13 of the International Covenant on Civil and Political Rights provides that procedural rights must be observed in the case of the expulsion of non-citizens who are lawfully within Australian territory, including a right to present arguments against expulsion, and to have their cases reviewed by and be represented before competent Australian authorities, except where compelling reasons of national security require otherwise.

1.11               The bill maintains the ability of the Government to protect Australia’s national security through the Special Advocate provisions while affording due process to non-citizens who may be subject to expulsion.

Conclusion

1.12               The bill is compatible with human rights as it does not infringe or limit existing rights, but will help Australia uphold rights related to arbitrary detention and due process of law.

 

 

 

Senator Hanson-Young