How To Rein In ASIO

The is the second in a two-part series on ASIO. Part one can be found here.

The human consequences of indefinite detention are predictably profound. Our government is making refugees mentally ill. Protracted detention places refugees in a constant state of acute anxiety, uncertainty and distress, with feelings of powerlessness, despair and hopelessness. Such distress often manifests in depression, post-traumatic stress, and suicide or self-harm. The government reported 1100 incidents of actual or threatened self-harm in 2010-11 alone.

One Australian study by Derek Silove, Patricia Austin and Zachary Steel showed that people detained for more than six months experienced twice the rate of mental distress than those detained for shorter periods. Mental distress also lasts longer after release. Their findings are consistent with international research. Because one cause of mental harm, detention itself, cannot be controlled by medical staff, it also cannot be effectively treated in detention.

The effects on children are especially pernicious. The Australian Human Rights Commission reports that even children under the age of 10 have self-harmed, while there are infants with severe separation anxiety, adolescents with severe depression and PTSD, and parents who cannot adequately care for their children.

At Villawood, there is one Tamil family in which both parents have received adverse security assessments and their three children under seven years of age have been detained for years with them. The youngest child was born in detention and has spent his lifetime of two years there. The psychiatric assessments are gruelling to read.

The youngest boy is sad and lonely, cries a lot, and has trouble eating. The daughter is distressed at school when she is not permitted to do normal things like the other children, such as going swimming or buying ice-cream. She has been withdrawn, lacking in appetite, sad and quiet, and not wanting to go to school. She expresses grief, loss and hopelessness, and knows that others see her family as "bad people". The middle child, a boy, wets the bed even when sleeping during the day.

The mother says their children have a "jail life" and has even considered adopting them out. She herself is distraught, often waking crying and inconsolable in the night, feeling that they are treated as "criminals" with "no future". Their psychiatrist found that the three-year-old son was "abnormally sad and anxious and could be malnourished" and expressed concern that "his normal development has been seriously disrupted". The older children’s detention was also "seriously jeopardising protective factors children need to build resilience".

Literally every peak Australian medical body has criticised the adverse mental health effects of protracted detention, including the Australian Medical Association; the various colleges of psychiatrists, general practitioners, physicians, and mental health nurses; the Committee of Presidents of Medical Colleges; and the Australian Psychological Society.

The levels of mental distress in detention are also vicariously traumatic for the detention centre staff who have to "manage" them and the many empathetic immigration officials who can only watch them suffer. The toll is also high on their devoted supporters in the community (Tamil and otherwise), including activists like Bala Vigneswaran and Ian Rintoul. Migration agents and lawyers also try their best to give the refugees hope, despite the law being stacked against them — brave people like Stephen Blanks, Josephine Murphy, Julian Gormley, and the tireless crews at Amnesty International, the Refugee Advice and Casework Service in Sydney, and the Refugee and Immigration Law Centre in Melbourne.

Still, the government does not listen. To the contrary, in 2011 the Parliament passed a new law to revoke refugee status for even minor crimes in detention. The law now criminalises the frustration and despair which leads to unrest and "misbehaviour", and which the detention regime itself produces. What country is this? How did the law come to this?

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The current crisis is the culmination of many years of unabated controversy about ASIO’s assessments, whether applied to people lawfully or unlawfully in Australia. In 2005, the American peace activist Scott Parkin had his visa cancelled after arrival in Australia. In the ensuing melee, it was suggested that the most dangerous thing Parkin had done was to dress as a fluffy tiger outside Exxon Mobil in America, leading to his arrest. The Inspector General of Intelligence and Security quashed rumours that Parkin had advocated throwing marbles under the feet of Australian police horses.

Parkin’s fruitless legal challenges were pursued alongside those of two Iraqi refugees, Mohammed Sagar and Muhammad Faisal, who were detained on Nauru from 2001 under the Howard government’s Pacific Solution. Both refugees were assessed as security risks by ASIO in 2005. Both men spent around five years in detention, with Sagar poignantly the last man standing on Nauru and Faisal the second last.

At the end of 2006, in the best Scandinavian tradition, Sweden resettled Sagar. A suicidal Faisal left Nauru after being hospitalised in Brisbane and was granted a permanent Australian visa after a second ASIO assessment cleared him in 2007. While the Federal Court ordered ASIO to disclose the evidence to Parkin, Sagar and Faisal in 2007, the Court later blocked disclosure on security grounds in 2009. To this day none of them knows why they were considered security risks.

The same is true of an Iranian sheikh, Dr Mansour Leghaei, who was forced to leave Australia in 2010 after unsuccessfully challenging ASIO for over a decade. Leghaei and his family came lawfully to Australia in the mid-1990s and he became the much revered spiritual leader of a moderate Shiite Islamic centre in Sydney. It was rumoured that Leghaei was an Iranian spy, but he was not given reasons and was unable to effectively defend himself. As Archbishop Desmond Tutu tartly said, "in South Africa we used to have detention without trial. In Australia you have deportation without trial".

A winter’s march on Parliament House in Canberra by 1000 of Leghaei’s Muslim supporters failed to move the government — though it shocked a nervous commercial television reporter into asking "Are they going to attack?". Leghaei’s political friends had deserted him, including his former character referee, local MP (and later Attorney General) Robert McClelland. An Anglican priest, the boxer "Father Dave", became his staunchest supporter, inspired by Leghaei’s commitment to interfaith dialogue and determined to show that mainstream Australians were disturbed by their country’s treatment of him.

Leghaei’s removal crushed his flock and tore apart his family. It also sent trust between the Muslim community and the government spinning to a new low, at a time when Muslim Australians already felt alienated by excessive anti-terrorism laws after 9/11, the Cronulla riots, and the spike in religious and racial vilification against Muslims and Arabs.

At the heart of the ASIO process which treats people like this is a legal distinction drawn between Australian citizens and permanent residents on the one hand and "illegal" entrants and temporary visa holders on the other. Under the ASIO Act of 1979, citizens and residents are entitled to a statement of reasons for an adverse assessment, and enjoy a right of "merits" review of the factual basis of their assessment before the Administrative Appeals Tribunal. Temporary visa holders and "illegals" get no reasons and no right of administrative review.

The distinction came out of a far-reaching royal commission into intelligence and security in the mid-1970s. The commissioner, Justice Robert Hope, suggested simply that it is "difficult to justify" giving the same rights to those who are not citizens or permanent residents. No explanation of that policy choice was given. At that time, it was apparently a no-brainer that foreigners should not be treated as fairly as citizens. The distinction rests on an intuition that those with a stronger connection to Australia deserve better procedures.

That policy intuition is deeply flawed for two reasons. First, as already mentioned, the idea of a fair hearing aims not only to do justice to the individual, but also to ensure the accuracy and accountability of decision-making by allowing the executive’s allegations to be scrutinised. Secondly, contemporary ideas about the rule of law and human rights assume that the law should treat "similarly situated" people equally. Australians too can be terrorists, spies, or saboteurs, yet normally enjoy greater rights. If the concern of security assessments is to identify and quarantine security risks, it makes little sense to provide different rights to Australians and foreigners who may be equally dangerous. Likewise, if we do not administratively lock up risky Australians, we should not lock up risky foreigners.

The law is stuck in a time warp, from an era when outsiders were considered suspect and beyond the protection of the laws enjoyed by Australians. That era has vanished in most of the democratic world, replaced by a rights-based legal culture of equal respect for the dignity of all, regardless of bonds of attachment or citizenship. In an Australia still sorely lacking a bill of rights, foreigners must rely on the good grace of Parliament.

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The unfairness of ASIO security assessments has, however, struggled for political visibility. There is little political appetite for change. Both major parties see much risk and little gain in reform. It is too easy to be painted as soft on terrorism. Neither party wants to be blamed if a new law exposes security secrets and something goes catastrophically wrong. For the same reason, judges have been reluctant to scrutinise security decisions too closely and have declared that they must largely defer to ASIO’s expert judgment.

There is also little political constituency for change. Giving more rights to suspected terrorists, who also happen to be "illegal" boat people, "queue jumpers" and South Asians, is not popular. Curbing powers that ASIO says are necessary to protect us will not win votes.

Despite the government’s refusal to budge, there is a growing legal and policy consensus that the current system is irremediably broken. The chorus of expert critics includes the UN High Commissioner for Refugees, Australian Law Reform Commission, Law Council of Australia, a joint parliamentary committee, and academics. The Australian Human Rights Commission has been a particularly vocal and principled critic, even if its reasoned voice is too often ignored by political apparatchiks who do not appear to grasp what is at stake.

The Greens have doggedly pursued the issue. Some in Labor ranks, such as Daryl Melham, chair of a recent joint parliamentary committee on detention, have tried hard to make noise. Labor rank and file is also concerned, with the Labor conference in late 2011 recommending an inquiry by the Independent National Security Monitor. Meanwhile, 45 refugees (and Sheikh Leghaei) have lodged formal complaints against Australia with the United Nation Human Rights Committee, and there are two High Court challenges pending.

What’s wrong with the system is widely known; less attention has been paid to how to fix it. ASIO has publicly indicated its willingness to work within whatever legal mandate is given to it, as it must. For all the inertia and resistance to change in successive governments, reform can be achieved relatively simply and in ways which reasonably balance security and fairness, based on successful models in other democracies.

First, a person should always be given adequate notice of the allegations, minimum disclosure of incriminating evidence, and a statement of reasons for the decision. This means that procedural fairness should never be reduced to "nothingness" — a sketch or outline of the allegations and reasons must always be provided. A person could be informed, for instance, that they are considered a security risk because: "You joined the LTTE and killed civilians in village X on 1 April 2009". Such disclosure would not usually prejudice security interests.

Secondly, where confidential intelligence must be protected for security reasons, a "special advocate" should be appointed, as in Britain, Canada and New Zealand, to confidentially deal with that evidence on behalf of the person. Thirdly, the jurisdiction of the Administrative Appeals Tribunal to review the facts should be provided for citizens and non-citizens alike. Fourth, the law should require alternatives to detention, mentioned earlier, to be considered.

Such reforms would go a long way to improving the current law. A more ambitious agenda could also restrict the scope of public interest immunity, for instance by requiring minimum disclosure to the person coupled with the use of a special advocate. A reformed process would improve the quality of security assessments, by ensuring that only those who are truly risks, based on tested evidence, are adversely assessed or detained. Improving the accuracy and reliability of decisions helps to preserve the scarce resources of Australian security agencies; makes Australia safer; and enhances public confidence in ASIO. It would also spare innocent refugees from being wrongfully tarnished and detained as security risks.

An even more courageous Parliament could structurally reform the entire process. At the moment, a fatal flaw is that ASIO both gathers intelligence and uses it to issue assessments. ASIO is simultaneously investigator and judge, which cannot provide independent decisions or avoid conflicts of interest. The law could instead require ASIO to apply to a court for an adverse assessment order, just as the Australian Federal Police must apply to a court for a control order. This would introduce an independent judge and judicial protections into the process. The result would be increased public confidence in both security measures, and the courts, which currently walk close to the wire of rubber stamping executive decisions.

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Whether a modest or more ambitious reform agenda is pursued, it is worth mentioning that some defects in the current laws do not only affect "boat people". In fact, procedural fairness for Australian citizens and permanent residents can also be virtually eliminated in security cases, albeit by different means. While this does not lead to indefinite detention, it can bring many other adverse consequences, from passport cancellation to denial of employment.

The problem is not only a marginal one confined to "illegal" outsiders or refugees, but goes to the heart of how the Australian Parliament is prepared to treat its people — and to conceptions of fairness and justice we hold as a society.

The struggle to bring our security agencies within the rule of law has far to go. The current law is not necessary to make us safe; it is an excessive, blunt instrument. Along the way it does irreparable damage to those it indefinitely detains and stigmatises. The law no longer carries the confidence of its people. Every person, citizen or non-citizen, deserves equal respect from a rule of law. There is no longer room for ASIO’s dark justice.