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Legal and Constitutional Affairs Legislation Committee
22/03/2013

ANDREWS, Mr Rafe, Research Assistant, Gilbert + Tobin Centre of Public Law

HARDY, Mr Keiran, PhD Candidate, Gilbert + Tobin Centre of Public Law

HARRIS RIMMER, Dr Susan Gail, National Committee and Australian Capital Territory Co-convenor, Australian Lawyers for Human Rights

LYNCH, Professor Andrew, Director, Gilbert + Tobin Centre of Public Law

[10:11]

Evidence from Mr Andrews, Mr Hardy and Professor Lynch was taken via teleconference—

CHAIR: Welcome. We have a submission from the Australian Lawyers for Human Rights which we have numbered 5 on our website and the Gilbert + Tobin submission is No. 6. I will ask each of the groups to provide some comments about your submission and we will go to questions. Do you have any opening comments?

Dr Harris Rimmer : Australian Lawyers for Human Rights is a voluntary organisation of human rights lawyers and students. It is our 20th anniversary this year. The reason we are so committed to and supportive of this bill is because this is a Human Rights 101 situation. Any law student or any practitioner of human rights will tell you that this is a flagrant breach of human rights law and has been for the last 20-something years. We believe it is time for a bit of plain speaking which I will try to engage in today.

Our message to you is that passing this bill is not a radical move. It is basically the least this parliament can do. We congratulate the senator for bringing the private member's bill and we congratulate the committee for having these hearings and getting more evidence on this topic. But it is urgent. It is an extremely urgent piece of law reform that needs to be undertaken with 55 people languishing in a Kafka nightmare. We have five children languishing in this Kafka nightmare. It has to stop. For my whole legal career I have been grappling with this particular situation and it is awful as a legal practitioner to be on that side of it. You have been hearing that emotion coming through in the voices of these lawyers facing these impossible conversations. 'I am here to tell you that you are a refugee. You can't get out of detention because you've got an adverse assessment,' if you are allowed to tell them there is an adverse assessment. 'We'll try to get you to a third country. No, it is very unlikely a third country will take you. No, I don't know why you have an adverse assessment. I don't know what you've done. They won't tell you. They won't even give you the gist of it. I don't know who they spoke to. I don't know whether they've got the right person. I know you're from a war zone. I know there's difficulty with your identity document. I can't tell you whether we've got the right person. No, you have to stay in detention until the department makes a different decision. Yes, your children have to stay with you.' It is awful. I want the committee to really understand what it is like to be engaged in those situations. It brings the entire Australian legal system into disrepute every time it happens. The human cost of that from the clients perspective is extraordinary.

So, it is time to do something. I understand that this committee is grappling with whether the announcements made by the government last year are enough, whether we still need this bill or whether we even need more. The independent reviewer is good step but it is an administrative step. It is to make sure ASIO gets its house in order. It is about the quality of ASIO decisions. Let me tell you, without saying anything negative about ASIO, it is incredibly difficult. Again, here is how the conversation goes: 'Yes, you're a refugee who's been persecuted by the security actors of that state. Yes, we asked the security actors of that state whether you were a risk to Australian security. No, the conversation did not go well.' ASIO is in a really difficult situation. There are very complicated countries to receive good quality information from. The quality of ASIO assessments is incredibly difficult. The more review of those discussions the better, but they are not having access to a court to review the decisions. That has been an untenable situation. There is no administrative or policy action that can replace the role of a court. We know this. This is fundamental to a common-law country. You need a court to make decisions about liberty—basic stuff. That is why Australian Lawyers for Human Rights supports this bill.

We say two things. There is another issue here in terms of international human rights law. It is a clear breach of article 9, but it is also not compatible with articles 32 and 33 of the refugee convention. UNHCR will tell you later today that it is absolutely within the refugee convention to expel a refugee, to not give them refugee status or to cease their refugee status if they are a threat to national security or if they have been convicted of a serious political crime. That is all fine, but there is not a match between what the refugee convention decides is exclusion grounds and what ASIO decides is the basis of an adverse security assessment. They are not matched in the current system. That is why we have a lot of these problems.

It is the least radical thing you can do. Australia is unique in its lack of human rights protections. Looking at comparative jurisdictions get you so far but not the full picture. And we have a mismatch between our Migration Act in this area and the refugee convention which is at the heart of some of the problems. We have some specific recommendations about some minor amendments to the bill. I would ask that you ask Mr Irvine later about what has happened to the previous cases; what has been the fate of people who have come up against ASAs and have been in detention. I think that is a very interesting question to ask him. Even if there is access to the AAT, the SSD has some serious issues, even for Australian citizens in accessing the tribunal, so you need to be really careful about thinking that will solve all the problems, due to the operation of public interest certificates, which Andrew Lynch can tell you all kinds of things about.

Parliament has a duty to fix this. You have a duty to fix the situation for those 55 people and particularly those five children. This is a situation that parliament has known about for the last 20 years. It is not good enough to leave this to ASIO and the immigration department to sort out. They have not sorted it out; they have never sorted it out; it is up to the parliament to sort it out once and for all.

I use the Opera House test: if you caught someone in the act of blowing up the Opera House, would they get a better quality of administrative process and criminal process than these refugees are getting? I think you would find that they would. I think that is wrong. Someone who has actually done something wrong and proved a risk to the Australian community gets a better process than someone who has not proved any actual risk to the Australian community. So we need a process that is balanced, nuanced and proportional, and that is not the process we have at the moment.

CHAIR: Thank you. Professor Lynch, would you like to make some comments about your submission?

Prof. Lynch : Thank you. Mr Keiran Hardy will give our opening statement.

Mr Hardy : We are grateful for the opportunity to speak to the submission. The current bill is a welcome contribution to the debate on the difficult and important issues facing noncitizens in the national security context. The proposed measures in the bill represent a significant improvement on the situation currently facing noncitizens affected by ASIO security assessments. What our submission hopes to achieve is simply to urge caution with regard to these improvements by drawing attention to three things. Firstly our submission addresses two key problems with the use of special advocates in the United Kingdom, the tendency of these powers to become normalised into other areas of law and the prohibition on communication between applicants and their appointed lawyers. Although the proposed power to authorise communication in this bill attempts to respond to the widely perceived deficiencies in the UK we note that this power may have little practical utility in situations where the Attorney-General certifies that the proposed communication would be contrary to the public interest. Secondly our submission points out the significant limitations currently facing Australian citizens in the Security Appeals Division, to which the bill seeks to give noncitizens access. Submissions you have received from the Law Council of Australia, and Professor Ben Saul and Dr Harris Rimmer's comments, also attest to these difficulties. Lastly, in the absence of statutory protection guaranteeing noncitizens a right to have the essentials—or what the UK courts in the control order cases have called 'the gist'—of any material led against them, we believe that the bill is unlikely to materially improve the ability of noncitizens to challenge the basis upon which their security assessments are made. These three points are intended as qualifications to the bill's otherwise significant contributions, not as reasons against the bill's enactment.

CHAIR: Thank you. Let us go to questions. Senator Hanson-Young.

Senator HANSON-YOUNG: Thank you both for your submissions. There is a view that the government's policy of introducing an independent reviewer as currently stands is enough. This bill obviously moves that role into it being embedded in law so that regardless of whether there is a change of government policy, or indeed a change of government, those who have been indefinitely detained and given an adverse assessment without even having a reason or the ability to defend themselves can still have a guaranteed process to go through. What is your response to the government when they argue that they have got an independent reviewer and everything should be A-okay now?

Dr Harris Rimmer : They are two completely different things. It is good for there to be an in-house review of ASIO decisions; it is good for Margaret Stone to put pressure on the quality of those decisions and to check the information, the sources of information and the way the information was made. All of that is a good thing, and that is fine. But that does absolutely no good to the client if they do not know any of the outcomes of that and they still cannot challenge any of those decisions. So it is not a legal solution. It is a policy decision that is an internal quality control mechanism for ASIO, and that is a good thing. It is not an accountability mechanism or a legal mechanism that allows a court to judge the validity of the decision.

If you follow the government's reasoning we would not need to have courts at all, because just getting public bureaucrats to check each other's work is enough. It is not enough. She is not acting as a Federal Court judge as the independent reviewer; she does not have a formal court position. She is a retired—

Senator HANSON-YOUNG: There is no power to compel or to enforce?

Dr Harris Rimmer : She has no powers of a judicial officer. She is a retired judicial officer. It is not the same. It is like saying we have got a Commonwealth Ombudsman and therefore we do not need the Federal Court—it does not follow. It is good, but it is just not enough. It is insufficient for what we need here.

Senator HANSON-YOUNG: What about the indefinite detention aspect? Obviously, the immigration minister already has the power to not have these individuals, including children, detained as they currently are. There are children currently in detention who have been in detention for four years. The minister already has the power—today—to determine that they do not need to be in detention, monitored and watched 24 hours a day, seven days a week by security guards. The minister already has that power. What is your view of that?

Dr Harris Rimmer : Again, it is not acceptable for a politician—an executive—to make those sorts of decisions. Whether someone poses a risk to the Australian community are decisions for a court, in my view. No minister is going to say, 'I've got an adverse ASIO assessment but I'll release this person.' It is a very difficult political decision to make. It is high risk, I would think. They should make it, because they should have wider information in front of them. Any minister should be getting wider information in making a decision, and the best interests of the child should have real weight. But, politically, it is a very difficult decision to make. Certainly, that is my experience. It is very difficult for the minister to have enough courage to make that sort of decision.

But actually it is not an appropriate exercise of executive power. Someone should not be in detention indefinitely. They should have their situation resolved by a court, exactly as Ben would say. The basis of our whole legal system is that deprivations of liberty are handled by courts.

So, essentially, it is a proper exercise of judicial power. So even though I think the minister should exercise his or her discretion in these types of issues I agree with the Australian Human Rights Commission recommendation to make the residential determination compellable. I think that is a very good step, because at least if forces the hand of the minister to take good advice and to make the decision.

But really I think these are decisions that are best handled by a court, and then the minister could act on what the finding of the AAT is. That is a much safer position for a politician to be in, I believe.

CHAIR: I wanted to ask both of you if you feel that this bill needs amending, strengthening or changing, and in what ways should that occur?

Prof. Lynch : There are a number of aspects to the bill that we think might be improved upon or changed. I think the obvious one is the sections which deal with internal review in ASIO. We think the provisions in the bill relating to the appointment of the independent review mechanism and the government position on an internal executive review need to be reconsidered and perhaps revised. We would express agreement with the Law Council's submission, which suggests that the involvement of an independent reviewer, as an additional add-on to ASIO's consideration and review of these matters is preferable than perhaps the provisions in the bill. It goes a little bit further than those. So, regarding internal review, we think that that part of the bill might be revised.

Regarding the merits review in the AAT, and the obstacles that are faced there, I will hand over to my colleague Keiran Hardy.

Mr Hardy : I think Dr Harris Rimmer made a comment that this was not the most radical bill that could be proposed. What I took that to mean was that more significant changes to the current AAT process would be necessary if non-citizens are to have a really meaningful right to challenge these assessments. Changes like a minimum standard of procedural fairness contained in the statute, or perhaps considerations that the Attorney-General needs to take into account when issuing a public interest certificate, would be the really significant ones that would improve the rights not only of non-citizens but also citizens, in the AAT.

Prof. Lynch : On the issue of special advocates, we can well understand the motivation for introduction of special advocates and there is certainly a wealth of overseas experience which suggests that they offer one solution to this fairly intractable problem. In our submission we have cautioned about some of the consequences that can follow from that. On a specific element that we think is good in the bill, regarding an attempt to enable communication between special advocates and the affected individuals, I think in practice the effect of section 39D(8) will be that that communication will presumably in most cases be thwarted by a certificate from the Attorney-General regarding public interest. So that subsection in particular seems almost to undo the bill's attempt to provide a solution to what has bedevilled the use of special advocates in other jurisdictions—namely, the United Kingdom—that being the inability for communication between the advocate and the applicant.

Mr Andrews : Can I add that the Attorney-General's submission points out that the independent reviewer will not be prevented from communicating with the applicant refugee after they have received all the information, and that is different to the special advocate regime that is presented in the bill.

CHAIR: That has given us a fair range of ideas. We would need to include provisions for the special advocates, though, because that is currently not provided in this legislation, and modelled on what is happening in the UK?

Prof. Lynch : The run of case law from the House of Lords and now, as it is known, the Supreme Court of the United Kingdom is that the use of special advocates cannot alleviate the fundamental unfairness that is caused when the affected individual is not provided with what the UK courts call the gist, or what is otherwise referred to as the irreducible minimum core, of the case that is against them. So, even with the bill's attempt to provide a means of communication between the advocate and the affected individual, absence of a statutory attempt to provide a right to the gist of why it is that the adverse security assessment has been made fundamentally taints any capacity that they might have to challenge that.

That is one aspect of the bill that bears out the comment by Dr Harris Rimmer when she referred to it as the 'bare minimum' that can be done, and it might go a little further in providing a statutory basis for that core level of information. Obviously the extent of that summary will be determined by the removal of information that is prejudicial to national security, but at the moment it is a completely empty sheet—there is not even a bald statement as to why the assessment has been made. The article that Professor Saul annexed to his submission gives an example of the kind of thing that could appear as a statement which, very briefly, would at least provide that information. That would be on a par with court decisions that are coming out of the United Kingdom and which also have now influenced the drafting of the Justice and Security Bill in that country.

Dr Harris Rimmer : We agree with the Law Council and with Gilbert + Tobin that the restrictions on the ability of the special advocate to communicate with the review applicant might actually undermine the efficacy of some of the measures in the bill. Looking at that closely is important, and maybe lifting some of those restrictions. This is an area of law where you can get a lot of hollow vessels and a lot of empty procedures. It is really important to actually review the measures not so that there is a process but that the process has some sort of meaningful outcome for the applicant. In that sense, we could probably change 39C(3)(b), which says the special advocate 'is not a representative of the applicant' for the purposes of the act. I think the UK language of the drafting there is better. They are there to represent the interests of the appellant but are not responsible to the person whose interests they are appointed to represent—that is a better way of phrasing that. In other words, they are there to represent the interests of the appellant; they are not there to represent the appellant as an individual. It is a nuance, but it is an important nuance, and that is the way the UK Act works the way it does.

But, having said that, I feel that really the AAT jurisdiction generally has to be looked at, the use of public interest certificates in particular. I do not know whether this bill will actually mean that people will get answers to the questions that send them mad. But I think it is a very good start, and it is a much better system than we have. I think the committee should also really seriously consider a review of the SSD itself, and its jurisdiction, for citizens as well as noncitizens, so we can look further at some of these things and the way they interoperate. I also think ASIO and the immigration department and the Attorney-General's Department need to really look at the match between what the refugee convention says can happen to refugees if they are excluded on the grounds of serious political crimes and danger to the community and what in fact the ASIO Act assessments do. They are not matched. So, until we get that kind of international law resonating with our domestic processes, we are constantly going to have people in this limbo land where they cannot be returned and they cannot be released for grey-area reasons, and we will keep having this problem.

I agree with Liberty Victoria that there needs to be a spectrum of activities, which is something the bill could go into more—a spectrum of processes that means people can be released in a range of ways: bail, parole. I draw the line at control orders, but I understand why Liberty Victoria has mentioned that. This might have been an issue before 2001. We have extraordinary counter-terrorism laws. If any refugee released into the community so much as looked at you sideways, things could happen to them. It is not as if we do not have a full suite of tools to deal with risk to the Australian community under the current counter-terrorism laws. It might have been different in 1979 up to 2001. But there is no need for this level of restriction under the current state of our counter-terrorism laws. If anybody wants to do anything wrong, we have a very wide range of tools. So I feel it is a case of having to crack a walnut, this whole area of refugee law.

Senator HUMPHRIES: Perhaps you could comment on this issue about the complexity and cost of the process. The Attorney-General's Department makes the point that its independent reviewer of adverse security assessments model processes intended it to be a relatively quick and informal process, with no formal hearings. Presumably that means it is cheaper as well. Given that obviously the cost of our system for dealing with the claims of asylum seekers has ballooned extraordinarily in recent years, ultimately this or another government has to start to deal with that unsustainable cost. Is it not necessary for us to ensure that while we have this problem we deal with it in an efficacious way? I appreciate as a lawyer that you would not agree with the proposition that you should cut corners when it comes to people's rights. As a lawyer I have a temptation to agree. But I put to you that containing the cost of the present system is a consideration that we cannot walk past.

Dr Harris Rimmer : If you look at the last 20 years and at how many adverse assessments there have been, they are very small in number, which is good. It does not seem to have mattered for the proportion of arrivals—they have remained small in number; they are an exceptionally small sample of the caseload. I think you will find that what we have not spent in courts we have spent a trillion times in mental health costs. While they remain in administrative detention under Commonwealth care they are costing us a lot of money. And while we are constantly saying, 'You have to stay here; we can't tell you why; we don't know when you'll ever leave; we can't send you to a third country and you can't go home, because you'll be killed', people will have mental health issues. No-one can accept that type of information without going a little bit strange. I have seen it in at least four cases that I have had to deal with. It sends you a little bit strange as their advocate. What I am saying is that it is a false economy.

I also think it would save the poor Attorney-General's Department a lot of money. They are reporting to the Human Rights Committee year after year on these cases. There is a lot of energy that goes into these 55 cases on the part of the welfare system, the legal system, the politics of it and the minister's office—a lot of energy and time goes into trying to resolve these irresolvable cases. So I think you would find it would be cost-efficient on a range of measures.

Prof. Lynch : I agree with the premise of the question. Developing the most sophisticated and effective internal review mechanisms with the inclusion or incorporation of an independent reviewer, such as Margaret Stone in the role she is fulfilling, is all extremely valuable. I think that is something that is reflected in the bill. It does not just deal with the AAT; it also attempts to affect the internal review process. As I earlier commented, in light of what the government has come up with, that part of the bill really is worth revisiting. Obviously, the AAT process is not just costly; it also takes a lot longer and all of those kinds of things. I do not think questions of cost mean that we should say, 'Therefore, we don't open that door;' the idea is that it should not actually be needed for very many cases. You can get to the bottom of others through far more effective means.

Dr Harris Rimmer : I agree with that proposition. With the independent reviewer you might have fewer cases in the courts, so it should work as a system.

Senator HANSON-YOUNG: You said in your opening statement that we should ask ASIO how they have dealt with other cases. Would you expand on what you were saying.

Dr Harris Rimmer : What has been the fate of other individuals who have basically had an adverse assessment but also not been released from detention.

Senator HANSON-YOUNG: Are you referring to Australian citizens, though—

Dr Harris Rimmer : No.

Senator HANSON-YOUNG: or are you referring to people who have been found to be refugees?

Dr Harris Rimmer : The current cohort of 55 are not the only people this has happened to. I think what you will find is that people basically are released because of a whole lot of mental health issues after a very long period of time. It is not a resolution; it is not a solution; it is a gradual—

Senator HANSON-YOUNG: Deterioration?

Dr Harris Rimmer : Yes.

CHAIR: Thank you very much for your submission and your time today. Mr Andrews, Mr Hardy and Professor Lynch, thank you for your submission and your time today as well.

Proceedings suspended from 10:43 to 11:03