Excerpt from Julian Burnside QC Rule of law and national security concerns – whither human rights? World Bar Conference, Queenstown September 2014 Full pdf here: julianburnside.au/nz1.pdf Politicians have set out to make us anxious about National Security. In Australia, they have had generous assistance from the Press. In the wake of the September 11 attack on America, Australia introduced some of the most draconian laws ever seen, supported by the idea that the laws would make us safer. Whether we are safer or not is difficult to judge. Since the laws were introduced substantially for their preventive effect, we can only speculate about what might might have happened if the laws had not been introduced. In broadest outline, the new laws give extensive new powers to the Australian Security and Intelligence Organisation (ASIO) to limit people’s rights by reference to Australia’s national security interests, and allows for control orders and preventive detention. Security Assessments ASIO has power to perform security assessments. An adverse security assessment from ASIO can result in a person’s passport being cancelled, or their job application being refused, or (for non-citizens) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for ASIO’s assessment may prove difficult or impossible. Cancellation of a passport following an adverse ASIO security assessment may be challenged in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and their lawyer from being present in the Tribunal while certain evidence is given and submissions made. Here is the text of one such certificate, issued early in 2006: I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia ... hereby certify ... that disclosure of the contents of the documents ... described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security. I further certify ... that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents ... are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security. As the responsible Minister ... I do not consent to a person representing the applicant being present when evidence described ... above is adduced and such submissions are made ... The practical effect of that certificate was that the Applicant who sought to review ASIO’s decision to adversely assess him was not allowed to know the case against him. My junior and I went to the AAT to represent him, but we spent most of our time sitting outside the hearing room, wondering what was going on. When the AAT finally decidedthe matter, they delivered reasons in two parts. The open reasons said that there was nothing in the material available to the Applicant to justify the adverse assessment. However they upheld the assessment on the basis of their secret reasons, which we are not allowed to see. If a refugee is adversely assessed, they will be refused a visa. They do not have access to the AAT, but they can go to the Federal Court to challenge the decision to adversely assess. In one such case, the refugee swore that he had never done or said anything that would bring him within the reach of the (very wide) provisions of the ASIO legislation. That evidence was not challenged or contradicted. Instead, ASIO’s argument was that, because the Court did not know what ASIO had taken into account in making its decision, the Court could not say they were wrong. The Judge agreed.
Posted on: Sat, 15 Nov 2014 02:52:17 +0000
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