ASIO Is Judge, Jury And Executioner

By mid-2012, around 140,000 Tamils found themselves displaced across 65 countries after the end of the Sri Lankan civil war in May 2009. A few thousand came by boat to Australia to claim protection, feeding the ongoing political mania here despite their small number. It is hard to blame them for coming. The Sri Lankan government probably murdered — with impunity — tens of thousands of civilians in the dying months of the war, and it remains pathologically hostile towards many Tamils. Australia does not, indeed, blame them. Most were recognised as refugees here, after protracted detention as "offshore entry persons?.

Despite receiving refugee status, a small group of Tamils was refused visas on security grounds, after assessments by the Australian Security Intelligence Organisation (ASIO). In 2010-11, ASIO issued 54 "adverse security assessments" to boat arrivals, out of 7000 cases. Most assessments concerned Tamils, while a handful involved Rohingya from Myanmar. By mid-2012, around 50 such refugees had been detained for between two and three years, with no imminent prospect of being released.

If there is little political or public sympathy for "boat people", there is even less for apparent "boat terrorists". These refugees are caught in a near-perfect legal black hole. They are told nothing of the allegations against them; no independent decision-maker examines the facts; and the courts can barely touch ASIO decisions. ASIO is judge, jury and executioner.

Once denied a visa, the refugees then become stuck in indefinite detention, which itself cannot be challenged because the High Court previously said it is legal in the infamous Al Kateb case in 2004. (A current challenge in the High Court will be decided on Friday, asking the Court to overturn its own recent decision.) It is not safe to send them back to Sri Lanka, but no other country will take them precisely because Australia says they are security risks. Life in detention then almost inevitably inflicts mental illness and often produces self-harm. One of my clients drank cleaning fluid in an effort to kill himself, while another was stopped trying to electrocute himself.

This is the dark nature of law not in Syria or the Soviet Union but modern Australia. Most people accept that there are good reasons for security and intelligence agencies to operate in the shadows. There is a world of evil out there — from genocidaires, death squads, torturers, and jihadists to fascist Breiviks. Human rights lawyers know this as well as security agencies: we are curiously enough on the same page. Democracies are locked in a struggle for humanity, even if certain threats are often exaggerated as existential when they are not.

Yet, if we learned anything from the march of twentieth century militarism, necessity cannot be condoned as the mother of law. Otherwise our hard won liberties dissolve into the muck of doing whatever it takes. The ghoulish excesses of the Bush Administration are recent testament to that risk, as are the absolutist impulses of Al-Qaeda.

The highest task of a democracy is not to protect its people at any cost, but within the democratic values of human freedom and the rule of law. Justice cannot be done exclusively in the shadows. ASIO cannot remain the sole arbiter of whether it is right. It is time for the Australian Parliament to bring ASIO’s work a little further out into the sunlight — just as security agencies operate more transparently in comparable — but no less safe — democracies.

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How does the security assessment regime work? ASIO provides security assessments to the Department of Immigration and Citizenship where a person is being considered for a protection visa. ASIO applies a statutory test of protecting Australia and its people from espionage, sabotage, political violence, promotion of communal violence, attacks on defence systems, or foreign interference. The test also extends to carrying out Australia’s responsibilities to foreign countries in relation to such threats, and now controversially to protecting Australia’s territorial and border integrity.

While ASIO typically interviews those it assesses, it does not formally give notice of the allegations, or disclose reasons or evidence to the person or their lawyers, or even provide a redacted summary of reasons or evidence. The ASIO Act of 1979 simply dispenses with the ordinary elements of procedural fairness. A refugee is not even given a copy of the assessment by ASIO itself, but typically learns of it only when the Department of Immigration informs them that their visa has been denied.

ASIO’s decision is then virtually immune from genuine scrutiny. No administrative tribunal is permitted to review ASIO’s factual findings and check its accuracy or reliability. This is unlike the situation for Australian citizens and permanent residents, who enjoy a right of review before the Administrative Appeals Tribunal.

While judicial review remains theoretically available to refugees, it is practically ineffective. If a refugee does not know the basis of the assessment, it is almost impossible to identify a legal error to legitimately commence court proceedings. Even if a refugee makes it to court, judges can only review the decision for narrow legal errors but cannot examine the facts.

ASIO can also rely on a suite of special rules to neutralise any real judicial scrutiny. The courts have accepted that procedural fairness remains available under the common law, despite the ASIO Act. But in the recent Leghaei case, the Full Federal Court found that the content of procedural fairness can be reduced to "nothingness" where the ASIO Director General personally determines that nothing can be disclosed to the person without prejudicing security. The courts have endorsed one of those glorious legal fictions that our students laugh about at law school: relax, you still get procedural fairness; sorry, there’s nothing left in it.

ASIO can also rely on a second legal manoeuvre by invoking public interest immunity, which precludes the admissibility in court of security evidence. Not only is the person unable to see and respond to prejudicial material, but the court itself cannot take it into account. While the courts must weigh the competing interests of security and justice before upholding immunity, it may ultimately resolve them wholly in favour of security and to the extinguishment of fairness. As the High Court found in 1982 in the Church of Scientology case, "the public interest in national security will seldom yield to the public interest in the administration of civil justice".

A second glaring legal fiction is thus created: a person has a right to judicial review, but there may be nothing left for the court to review. In case this is not enough to give ASIO what it wants, under the National Security Information Act of 2004, the Attorney General has a further power to conclusively certify that that disclosure would adversely affect Australia’s security, and the court must give primary weight the Attorney’s opinion.

The result of this perfect storm of national security laws is that a refugee enters in a legal black hole — unable to know the case against them and thus unable to effectively challenge it; enjoying no right of factual review; and enjoying only a hollow promise of judicial review.

In all of this, why a refugee is supposedly a security risk remains a mystery. Since most of the refugees are Tamils, the implication is that they are somehow linked with the LTTE (Tamil Tigers). If that is the case, it raises many unanswered questions. Not only is the civil war in Sri Lanka finished and the LTTE defeated, but there is little evidence that the LTTE ever threatened violence in Australia, let alone now. Unlike some other countries, Australia never banned the LTTE as a terrorist organisation, even during the war.

The UN refugee agency warns that because the LTTE ran a de facto government administration in north east Sri Lanka, civilians necessarily performed a wide range of innocent activities for the LTTE. Thus one of the refugees in detention helped cook for the LTTE and prepare for festivals; another was a civilian lawyer in LTTE courts. Bad cooking does not make a person a security threat to Australia.

The UN notes that some people were also coerced to assist the LTTE. Even those who fought militarily for the LTTE are not necessarily security threats to Australia, particularly where the person was not involved in violence against civilians. There is also grave reason to doubt the credibility of self-serving intelligence shared with Australia by Sri Lanka.

ASIO argues simply that the secrecy of the current law is necessary to protect Australia. For it, disclosing reasons or evidence to a person would jeopardize secret intelligence sources and methods, and tip off our enemies to what ASIO knows (and does not know). People would also learn to play the system if they knew more about how ASIO works.

ASIO is also concerned that foreign intelligence partners continue to share information with Australia and is wary of greater disclosure prejudicing those relationships. Precisely this happened when a British judge ordered CIA intelligence to be disclosed some years ago, souring relations with the United States. For ASIO, in a dangerous world, sacrifices have to regrettably be made — and "illegal" foreigners are first in line.

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What then is wrong with the current procedure? Few doubt the right intentions of ASIO in performing its mandate to safeguard security. As one Federal Court judge observed, "recognition and respect must be given to the degree of expertise and responsibility held by relevant senior ASIO personnel in relation to the potential repercussions of disclosure" and "a degree of faith must, as a practical matter, be reposed in the integrity and sense of fair play of the Director-General".

The ASIO Director General, David Irvine, commented last year that ASIO does "not take a decision to issue and adverse security assessment lightly and nor are we contemptuous of or blasé about the human rights of the individuals involved. We take very seriously our responsibility to behave ethically and professionally and, obviously, with the utmost probity".

That may be so, but ASIO is not like a god. Every decision-maker, no matter how good or ethical, makes mistakes. Sources and informants may be unreliable or bear grudges, identification evidence may be erroneous, seemingly incontrovertible guilt may have innocent and plausible explanations, and so on. The potential for mistakes is much magnified in the murky world of intelligence, where the standard of proof is very low and the focus is on probability predictions of risks that might happen — or not.

Ordinarily, in our common law system, the purpose of procedural fairness is twofold. On one hand, it rests on an intuition that telling a person what they have done wrong, and allowing them to effectively respond, is simply the right thing to do – fair play is natural justice. That is reason enough to provide it — even to "boat people", or Asians, or "terrorists".

But there is also an instrumental purpose to procedural fairness, which is to ensure the accuracy and accountability of public decision-making. Untested executive assertions are a recipe for miscarriages of justice. No-one, including a refugee, ASIO, or the wider public interested in the quality of justice, can have confidence that security assessments are correct if they consist merely of ASIO deciding that its own judgment is right.

One can well understand the instinct of law-makers and security agencies to do whatever is necessary to protect the Australian community from harm. Ensuring the security of its people is a fundamental duty of governments, vital to its political legitimacy and the stability of our democratic order. But in the long sweep of legal history, national security has often stood above all else, with threats to it justifying everything from show trials to summary execution.

The current ASIO regime bears the residue of that legacy. The Australian approach is an archaic, extremist one — it extinguishes fairness and values only security. There is no legal equilibrium sought or achieved. That places ASIO outside the law — or rather, ASIO becomes the law, in the finest tradition of sovereign absolutism. With absolutism comes the danger of descending into paranoia — swaddling ourselves against the faintest glimmer of a threat, finding invisible enemies under the bed, at whatever the human cost to others.

Our security agencies wield extraordinary powers which fundamentally affect people’s lives and opportunities. The centuries of slow struggle towards the rule of law is a story of trying to find a reasonable accommodation between competing public interests like fairness and security. Much of the liberal democratic world has accomplished this better than Australia. In Europe, Britain, Canada and New Zealand, for instance, the law never permits security to wipe out fairness altogether. In those places, sources and methods can still be protected by special procedures, but a person must always be told the essence of the case against them.

Those places are no less safe than Australia because of it. Fairness ultimately enhances security rather than diminishes it. That is not because providing it avoids the risk of blowback from marginalised communities, but because allowing people to test the allegations sharpens security decisions and focuses scarce resources only on those who are truly dangerous.

The delicate balancing of interests achieved in other democracies is also a sign of living in a fair and civilised society bound by the rule of law, which values dignity and respects human rights — even if doing so occasionally incurs security costs. Because Australia does not have a constitutional or statutory bill of rights, our legal system is not always fine-tuned to the intricacies of balancing competing public interests like fairness and security. When such interests collide, security prevails absolutely and fairness is extinguished.

Those European countries which survived the fires of nineteenth century autocracy, mid-twentieth century fascism, and late-twentieth century communism know the precious value of human rights as a bulwark against absolutism. The false promise of invisible bureaucrats’ law is exposed in fatalistic eastern European novels like Franz Kafka’s The Trial, where the law is everywhere but offers you nothing. There is an unfathomable hard streak too in Australian politics, an authoritarian instinct which cannot see the violence it does to others, or empathise with a common humanity, or acknowledge the painful trajectory of history.

Australians must come to accept that even terrorists do not forfeit their humanity because they are terrorists. Our legal patriarch, Britain, accepts this, even though its people were viciously blown apart by Al Qaeda in the London bombings of 2005. Australian law-makers should not lack the same precious moral courage and conviction. Australian law is based on a false dichotomy between fairness and security, when they are natural stable-mates.

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The unfairness of the ASIO assessment process is only half the problem. An adverse assessment prevents a person receiving a visa, even if they have been found to be a refugee. As a result, the refugee remains in detention until they can be removed "as soon as reasonably practicable" to another country. The hitch is that it is usually impossible to send a person anywhere else. Because they are refugees, it is not safe to return them home, and Australia has not proposed to send them back.

But no other country has agreed to take them, not least because Australia says they are security risks. It is unsurprising that Sweden or other resettlement countries do not want our "terrorists". Detention pending removal soon morphs into indefinite detention. By mid-2012, most of the 50 refugees had been detained for between two and three years since arrival. In 2004, the High Court ruled in the Al Kateb case that indefinite detention can be lawful.

What is wrong with indefinite detention? A lawyer’s answer is that it is illegal. Australia is a party to the International Covenant on Civil and Political Rights of 1966, which requires detention to be substantiated by evidence, reviewable by the courts, used only as a last resort, and limited to reasonably short periods when absolutely necessary. Where there is no reasonable prospect of soon removing a person to another country, Australia cannot simply hold the person indefinitely while it sniffs out every other remote possibility.

For many of the refugees, detention is probably unnecessary because there are other, less invasive legal means of adequately dealing with any security risks they may pose. Simply detaining people for administrative convenience is not a good enough reason. Australia does not administratively detain citizens who threaten security. Instead, criminal prosecution is the norm, because it brings essential protections which avoid miscarriages and reach the truth.

Where there is insufficient evidence to prosecute, there are many other security measures available, from surveillance to anti-terrorism "control orders" — which at least require judicial approval. The Minister for Immigration can also order "community detention" on certain conditions, which could conceivably include restrictions on residency or communications, reporting obligations and so on — much like a de facto control order.

The legal problems with indefinite detention are ultimately grounded in human concerns. Liberty is among the most important of all rights — all the more so for refugees whose lives have been uprooted by the trauma of persecution. Modern human rights law arose against the backdrop of the Nazi and imperial Japanese destruction of our freedoms, including the capricious mass security detention of civilians in occupied territories.

Prolonged detention without charge is an arbitrary exercise of state power which interferes in the autonomy, security, and family life of individuals. Australian forces died to prevent its ascendancy in the Second World War. Our soldiers were early warriors for human rights and understood that freedom is precious and worth preserving. Human rights aim to impose fundamental limits when politicians attempt to perniciously wield public power, and contest the morality and right of any Australian Parliament to arbitrarily imprison refugees.

This is the first of a two-part series by Ben Saul on ASIO. Read the next installment here.