Click here to return to the Articles and Opinion Pieces Index

The following opinion pieces have been published by the President and Commissioners. Reproduction of the opinion pieces must include reference to where the opinion piece was originally published.

Security rethink can protect refugee rights

Author: Catherine Branson QC, President of the Australian Human Rights Commission

Published in Sydney Morning Herald, Friday 18 May 2012.

While the debate about Australia’s immigration detention policies continues to swirl with each new boat arrival, it has been easy to overlook the plight of a group of refugees held in closed immigration detention without prospect of release.

Over recent weeks their predicament and despair have started to receive public attention. As fears mount for their safety, it is clear there is urgent need for reform of the management of security risks posed to Australia by refugees.

There are 48 adults in detention in Australia who are recognised refugees but have received adverse security assessments from ASIO. Some have their children detained with them. One toddler has spent his whole life in detention; other young children have only ever experienced flight and detention. All of these people face the real possibility of life-long separation from loved ones.

They have not been told the reasons why they have been assessed to pose a risk to our national security. They do not have access to any meaningful review by our courts or tribunals of the decisions made about them. And, under current arrangements, they will remain in closed immigration detention unless another country agrees to resettle them, or circumstances in their country of origin resolve to the extent that they are no longer considered to be refugees. As neither option seems realistic in the short to medium term, they face indefinite detention.

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.

As reported widely in the media, there has in recent days alone been suicide attempts and other signs of severe distress among those affected.

Last month, Australian Human Rights Commission staff observed this acute despair first hand when they visited 27 refugees who had received adverse security assessments in detention facilities in Melbourne and Sydney.

Some of the people they met pleaded for assistance in arranging a ''mercy killing'' and showed them letters they had written to government authorities also making that request. Others simply wept; they were without words to describe their situation.

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.

Catherine Branson, QC, is president of the Australian Human Rights Commission. This article is based based on the annual Foundation House Oration to be delivered by Ms Branson in Melbourne tonight.