Complaints

Search

Independent Review of the Intelligence Community Submission (2011)

Legal

Independent Review of the Intelligence Community

Australian Human Rights Commission
Submission

April 2011

Introduction

The Australian Human Rights Commission welcomes the opportunity to make a
submission to the Independent Review of the Intelligence Community.

The Australian intelligence community plays a key role in ensuring national
safety and security. The Commission recognises the efforts of various agencies
to protect our community and appreciates the attendant challenges. However, many
of the activities of intelligence agencies have an impact on the enjoyment of
fundamental human rights. Consequently, it is important that there is external
periodic review of the intelligence community.

This submission will focus on an issue about which the Commission holds
serious concerns: the conduct of Australian Security Intelligence Organisation
(ASIO) security assessments for people seeking asylum in Australia, particularly
for people who are held in immigration detention. This submission will make
comments relevant to the following terms of reference:

  • how well the intelligence community is positioned to support
    Australia’s national interests, now and into the future
  • working arrangements and relationships between the intelligence agencies and
    policy and operational areas of government
  • level of resourcing dedicated to the intelligence community and
    apportionment of resources across the community.

The Commission
holds a number of concerns about the conduct of ASIO security assessments for
people in immigration detention who arrived in Australia without authorisation,
particularly for people in respect of whom Australia has been assessed as owing
protection obligations under the Convention Relating to the Status of
Refugees 1951[1] as applied in
accordance with the Protocol Relating to the Status of Refugees 1967.[2] The Commission’s
primary concerns include:

  • the significant delays in finalising ASIO security assessments for a large
    number of people in immigration detention
  • the level of resources allocated for the conduct of security
    assessments
  • the working relationship between ASIO and the Department of Immigration and
    Citizenship (DIAC)
  • the lack of transparency regarding the ASIO security assessment process and
    the limited access to merits review and judicial review of security assessments
    for some people, including asylum seekers in immigration detention.

Overview of the ASIO security assessment process

In order to obtain a permanent visa, including a protection visa, an
applicant must satisfy Public Interest Criterion 4002 of the Migration
Regulations 1994 (Cth) which states: ‘[t]he applicant is not assessed
by the Australian Security Intelligence Organisation to be directly or
indirectly a risk to security, within the meaning of section
4 of the Australian Security Intelligence Organisation Act 1979’ (ASIO Act). If a person in detention is not referred to ASIO
for security assessment until after they have been assessed to be a refugee,
they may face a prolonged period of detention. This is because current
government policy generally requires that a person remains in immigration
detention until their ASIO security assessment is finalised. However, the
continued detention of people who are awaiting ASIO security assessments is not
a requirement of either the Migration Act 1958 (Cth) or the ASIO
Act.

Under the Australian Government’s New Directions in Detention policy, detention of unauthorised arrivals is for the purpose of conducting
‘health, identity and security checks’. Once those checks have been
successfully completed, ‘continued detention while immigration status is
resolved is unwarranted’. The ‘security check’ required prior
to release from immigration detention should not be interpreted as requiring a
full ASIO security assessment. Rather, the ‘security check’ should
consist of a summary assessment of whether there is reason to believe that the
individual concerned would pose an unacceptable risk to the Australian community
were they given authority to live in the community. That assessment should be
made at the time of the individual being taken into immigration detention, or as
soon as possible thereafter. An individual should only be held in an immigration
detention facility if they are individually assessed as posing an unacceptable
risk to the Australian community and that risk cannot be met in a less
restrictive way. Otherwise, they should be permitted to reside in the community
while their immigration status is resolved. An ASIO security assessment, if
necessary, can be done while a person is living in the community.

Significant delays in finalising ASIO security assessments for a large
number of people in immigration detention

The Commission holds serious concerns about the length of time that many
people, particularly those already recognised to be refugees, are spending in
immigration detention awaiting the outcome of ASIO security assessments. For
example, during our recent visit to the Villawood Immigration Detention Centre,
Commission staff met with people who had been held in detention awaiting ASIO
security assessments for up to ten months after being recognised as refugees.

In February 2011, DIAC reported that there were 900 people held in
immigration detention who had been assessed as being owed protection obligations
who were awaiting release pending the outcome of ASIO security
assessments.[3] The Commission
welcomes the announcement of 17 March 2011 that the ASIO security assessments of
people who at that time had been recognised to be refugees would be completed by
the end of April 2011.[4] The
Commission hopes that this commitment is fully implemented.

Currently, there is no obligation upon ASIO to complete a security assessment
with respect to asylum seekers who arrived in Australia without authorisation
(largely Irregular Maritime Arrivals (IMAs)) within a specified time
frame.[5] The Commission believes that
ASIO should be required, by legislation, to complete security assessments for
people in immigration detention within a specific time-frame. In the event that
the time-frame is not met, ASIO should be required to provide information
regarding the delay and an expected time-frame for completion to the individual
concerned.

The resources allocated for the conduct of ASIO security assessments

The Commission is concerned that the level of resourcing dedicated for the
conduct of ASIO security assessments may be insufficient.

The Commission understands that the number of people seeking asylum in
Australia has increased the ASIO workload in regard to processing these security
assessments and that ASIO has had to re-assess its resource allocation as a
result. ASIO has reported ‘[i]n 2009-10, ASIO diverted resources to
undertaking security assessments of IMAs for DIAC. Consequently, the resources
available to assess protection visa and other refugee referrals were limited and
this caseload experienced
delays’.[6] The
Inspector-General of Intelligence and Security (IGIS) has also identified that
there have been increasing delays with the ASIO processing of security
assessments for other protection visa applicants including those living in the
community on bridging visas.[7] Although the Commission is pleased that attention is directed towards the
processing of security assessments for IMAs, this should not be done at the
expense of processing security assessments for protection visa applicants who
are not in detention.

It is of concern that there are significant delays despite ASIO having
recorded a budget surplus of $39 million in 2009-10, apparently due to several
reasons including lower than anticipated staffing
levels.[8] In the view of the
Commission, Australia’s human rights obligations to people in immigration
detention, combined with the considerable financial expenditure incurred as a
result of detaining those awaiting security assessment, should mean that
sufficient resources are dedicated to the task of processing security
assessments for refugees in immigration detention as quickly as possible.

The Commission therefore recommends that the resourcing of the conduct of
ASIO security assessments be reviewed and potentially increased in order to make
the security assessment process more timely. The Commission also recommends
investigation of whether there are factors other than resource limitations
contributing to delays in finalising ASIO security assessments for people in
immigration detention.

The working relationship between ASIO and DIAC

It is essential that there is a good working relationship between ASIO and
DIAC. The Commission understands that there are clear processes for the referral
of cases by DIAC to ASIO and for the escalation of priority cases. However,
given the serious consequences for individuals of any breakdown in the
relationship between DIAC and ASIO, the Commission recommends that this inquiry
consider whether any steps could be taken to improve this relationship.

Transparency and oversight of ASIO security assessments for certain
non-citizens

The Commission has serious concerns about the lack of transparency of the
ASIO security assessment process and the limited access to independent oversight
of security assessments for IMAs. The Commission is concerned that
currently:

  • there is inadequate information available about the ASIO security assessment
    process
  • people who have received an adverse assessment are not provided with
    information about the basis of that assessment
  • there is no merits review and limited judicial review of security
    assessments available to IMAs
  • there is limited independent oversight of ASIO security assessment
    processes.

Information about the ASIO security assessment
process

The Commission is concerned that there is little transparency about the
conduct of the ASIO security assessment process. People who are undergoing a
security assessment are provided with very little information about how the
security assessment will be conducted, or the timeframe within which it will be
conducted. The Commission believes that ASIO should be required to provide DIAC
with information about the processes involved, and the expected timeframes, that
can be passed onto the individual concerned.

The Commission is very concerned about the impact of the lack of information
about security clearance processes for people in immigration detention. During
its recent visit to Villawood Immigration Detention Centre, the Commission spoke
with people who expressed extreme frustration about the delay with their
security assessment prolonging their time in detention, and about the lack of
information provided to them about the security assessment process, expected
timeframes involved or progress with their assessment.

Information about the basis of an adverse assessment for people who do not
hold a valid visa

Under the ASIO Act, a person who is the subject of an adverse security
assessment is ordinarily provided with a statement that sets out information
that ASIO has relied upon to make the determination. However, section 36 of the
ASIO Act excludes this requirement from applying to a person who is not an
Australian citizen or a permanent resident or who is not the holder of either a
valid permanent visa or a special purpose visa. Accordingly, the vast majority
of people in immigration detention are not entitled to any information regarding
the basis on which an adverse assessment is made. This means that an affected
person is not provided with the information necessary to contest an adverse
security assessment. The Commission is concerned that this could amount to a
lack of procedural fairness and could prevent a blatant error, such as an error
of identification, being identified.

The lack of information regarding the basis on which an adverse assessment is
made is particularly concerning because of the consequences for the individuals
concerned, which may include indefinite detention, potential removal from
Australia, and separation from family members who may be released from detention
into the community.

Review of adverse security assessments

Merits review

While the Administrative Appeals Tribunal (AAT) has the power to review
adverse ASIO assessments, access to the AAT is denied to people who are not
citizens or holders of either a valid permanent visa or a special purpose
visa.[9] In the view of the
Commission, this is contrary to basic principles of due process and natural
justice. The Commission supports the recommendations of the Inspector-General of
Intelligence and Security that access to AAT review should be extended to
refugee applicants.[10]

Judicial review

There is very little practical opportunity for substantive judicial review of
adverse security assessments. Although the High Court of Australia has held that
ASIO decisions are subject to judicial
review,[11] the ability of ASIO to
withhold from an applicant and the court the information on which it has relied
means that challenging that information is virtually impossible. The case of Parkin v O’Sullivan is illustrative of this
difficulty.[12] Although an order of
discovery was made against ASIO, production of the relevant documents was
refused on the basis that it would prejudice national security and would be
contrary to the public interest.[13] Accordingly, none of the relevant documents was admitted into evidence for the
substantial hearing. In Sagar v O’Sullivan, Justice Tracey found
that ‘in some rare cases, such as the present, no jurisdictional error is
made if sensitive security information is withheld from an applicant and the
applicant is not, as a result, alerted to prejudicial material on which the
information has been
based’.[14] Consequently, the
practical difficulties in obtaining the necessary evidence and the restricted
scope of procedural fairness in the context of security assessments by ASIO as
interpreted by Australian courts make judicial review an ineffective appeal
avenue.

Independent oversight of ASIO security assessment processes

The Commission cannot entertain complaints about security related matters.
Complaints about the conduct of ASIO security assessments can be made to the
Inspector-General of Intelligence and Security. However, the
Inspector-General can only investigate the legality, propriety and procedural
efficacy of the security assessment process conducted by ASIO. The
Inspector-General’s jurisdiction does not extend to the actual merits of
an individual assessment. The Commission is concerned that this oversight may
not be able to address the reasons for delay in security assessment processes.
The Commission has heard people in detention express frustration at having
complained to the Commission, the Commonwealth Ombudsman and to IGIS without
result.

The number of complaints about security assessments made to IGIS has
increased significantly. In 2009-10, IGIS received 1015 complaints in regard to
ASIO security assessments in relation to people in immigration detention, a
significant increase from the 153 complaints lodged in the previous
year.[15]

Procedural safeguards available in other jurisdictions

The shortcomings in Australia’s current arrangements are particularly
evident when the procedural safeguards that exist in other jurisdictions are
considered.

In comparative jurisdictions where an asylum seeker has been assessed as
constituting a threat to security, procedural safeguards are in place which are
not available to certain non-citizens in Australia, including:

  • The obligation to provide the applicant with information sufficient for them
    to be reasonably informed of the basis of the adverse assessment and the
    opportunity to present further information on the issue. In the United Kingdom
    for example, if asylum is refused on the basis that the individual is considered
    a threat to security, he or she must be provided with the reasons for the
    refusal, both in fact and in law, and with information regarding how to lodge an
    appeal from the decision.[16] Similarly, in Canada, where the relevant Minister has issued a certificate
    stating that a person is inadmissible on the grounds of security, he or she is
    required to ‘file with the Court the information and other evidence on
    which the certificate is based, and a summary of information and other evidence
    that enables the person who is named in the certificate to be reasonably
    informed     of the case made by the Minister but that does not include anything
    that, in the Minister’s opinion, would be injurious to national security
    or endanger the safety of any person if disclosed’ (emphasis
    added).[17]
  • Where an adverse security assessment is made, access to more substantive
    avenues of review. This is facilitated by the provision of a Special Advocate,
    who, in essence, is a security-cleared person who is able to view both and
    original and a redacted summary of an assessment to ensure, as far as is
    possible, unclassified material and reasons are disclosed. The United Kingdom,
    Canada and New Zealand all provide for the use of Special
    Advocates.[18]

The
Commission believes that similar procedural safeguards should be introduced in
Australia.

Conclusion

In summary, the Commission makes the following recommendations about the
conduct of ASIO security assessments:

  • Consideration be given to means by which the relationship between ASIO and
    DIAC could be improved.
  • ASIO should be required by legislation to complete security assessments for
    people in detention within a specified timeframe. If the specified timeframe is
    not met, ASIO should be required to provide information regarding the delay and
    the expected time-frame for completion to the individual concerned. In order to
    ensure this is possible, the resourcing of the conduct of ASIO security
    assessments should be reviewed and potentially increased in order to make the
    security assessment process more timely.
  • Information should be provided to people who are subject to security
    assessments about when referrals are made, about the processes involved in
    conducting security assessments and the time-frames involved.
  • In the event that a person (including non-citizens or non-permanent
    residents, and people who do not hold a valid permanent visa or special purpose
    visa) is the subject of an adverse security assessment, they be provided with
    information to enable them to be reasonably informed of the information that
    ASIO has relied upon to make the determination.
  • Australian Administrative Appeals Tribunal review should be extended to all
    people who are subject of an adverse ASIO security assessment, including people
    who are not Australian citizens or permanent residents, or the holder of a valid
    permanent visa or special purpose visa.
  • The Australian government should explore options for strengthening
    substantive review of adverse security assessments, including through options to
    ensure the provision of greater information to applicants and the appointment of
    a Special Advocate.

Thank you again for giving the Commission the
opportunity to share its views regarding the operations of the Intelligence
Community. The Commission is acutely aware of the human impacts of delays in the
completion of ASIO security assessments, and the limited opportunities to
challenge adverse security assessments.

[1] Opened for signature 28 July
1951, [1954] ATS 5, (entered into force for Australia 22 April
1954).

[2] Opened for signature on
31 January 1967, [1973] ATS 37, (entered into force for Australia 13 December
1973).

[3] Evidence to the Senate
Standing Committee on Legal and Constitutional Affairs, Parliament of Australia,
Canberra, 21 February 2011, 92 (Garry
Fleming).

[4]Department of
Immigration and Citizenship Christmas Island: a notice to immigration
detention clients from the Australian Government (17 March 2011),
http://www.newsroom.immi.gov.au/media_releases/914 (viewed 15 April 2011);
Department of Immigration and Citizenship Mainland detention centres: a
notice to immigration detention clients from the Australian Government (17
March 2011), http://www.newsroom.immi.gov.au/media_releases/913 (viewed 15 April
2011); and Department of Immigration and Citizenship Alternative places of
detention: a notice to immigration detention clients from the Australian
Government (17 March 2011), http://www.newsroom.immi.gov.au/media_releases/912 (viewed 15 April 2011).

[5] Evidence to the Senate Standing Committee on Legal and Constitutional Affairs,
Parliament of Australia, Canberra, 21 February 2011, 92 (Garry
Fleming).

[6] Australian Security
Intelligence Organisation Submission to the Parliamentary Joint Committee on
Intelligence and Security – Review of Administration and Expenditure No.
9: 2009-10 (undated), p 41.

[7] Inspector-General of Intelligence and Security Annual Report 2009-2010 (2010). At http://www.igis.gov.au/annual_report/index.cfm p
29.

[8] Australian Security
Intelligence Organisation Submission to the Parliamentary Joint Committee on
Intelligence and Security – Review of Administration and Expenditure No.
9: 2009-10 (undated), p 20.

[9] Although s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) allows for an application to be made to the Administrative Appeals
Tribunal, the operation of s 36 excludes people who are not Australian citizens,
or the holders of a valid permanent visa or a special purpose visa from making
such an application.

[10] Inspector-General of Intelligence and Security Annual Report 2006-2007 (2007). At http://www.igis.gov.au/annual_report/index.cfm, p 12 and
Inspector-General of Intelligence and Security Annual Report 1998-1999 (1999). At http://www.igis.gov.au/annual_report/98-99/asio.cfm,
paras 89-91.

[11] Church of
Scientology Inc v Woodward (1982)154 CLR
25.

[12] Parkin v
O’Sullivan [2006] FCA 1413; O’Sullivan v Parkin [2006]
FCA 1654; O’Sullivan v Parkin [2007] FCAFC 98; O’Sullivan
v Parkin [2007] FCA 1647; O’Sullivan v Parkin [2008] FCR 283; Parkin v O’Sullivan (2009) 260 ALR
503.

[13] Parkin v
O’Sullivan (2009) 260 ALR
503.

[14] Sagar v
O’Sullivan [2011] FCA 182 at
73.

[15] Inspector-General of
Intelligence and Security Annual Report 2009-2010 (2010). At
http://www.igis.gov.au/annual_report/index.cfm p 28.

[16] Immigration Rules (United Kingdom), rule
336.

[17] Immigration and
Refugee Protection Act (2001) (Canada), s
77(2).

[18] See, for example, Special Immigration Appeals Commission Act 1997 (United Kingdom), s 6, Immigration and Refugee Protection Act (2001) (Canada), ss 83-85, and Immigration Act 2009 (New Zealand), ss 263- 271.