Press Release:Bill to Provide Natural Justice for Refugees Needs Overarching Human Rights Safeguards

December 19, 2012

PO Box A147
Sydney South
NSW 1235
DX 585 Sydney

Media release

For immediate release: Wednesday 19 December 2012

Bill to Provide Natural Justice for Refugees Needs Overarching Human Rights Safeguards

Australian Lawyers for Human Rights (?ALHR?) has called for overarching human rights safeguards to be included in a Bill which is, itself, designed to improve procedural justice for refugees who receive adverse ASIO assessments.

Stephen Keim, President of ALHR, said: ?The existing situation is a complete denial of natural justice for asylum seekers including many who have been found to be genuine refugees. The Bill will improve the situation with its use of ?Special Advocates? so that at least some arguments can be made on behalf of the asylum seeker?.

Mr. Keim made his comments in the context of a Bill before the Parliament intended to reform the existing law, the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012.

?However?, said Mr. Keim, ?the new system needs to be made subject to overarching human rights protections. Since Australia does not have these in its Constitution or in the general law, the new system should provide these in the Bill, itself.?

Mr. Keim said: ?Under current law, asylum seekers and refugees who receive an Adverse Security Assessment (?ASA?) are not allowed access to the evidence that resulted in such a finding.  This means those affected have little opportunity to challenge or test the evidence.?

?There is no mechanism for having an Adverse Security Assessment administratively reviewed. In practical terms, those affected also have little prospect of having it successfully reviewed by the courts since the Director-General of ASIO is not required to provide reasons for the assessment,? Mr Keim said.

Adverse Security Assessments have a direct effect on asylum seekers? prospects for on-going protection from Australia, even when they have been found to be genuine refugees. ?A direct consequence of receiving an ASA is that refugees will spend long and indefinite periods in detention without being able to challenge the basis for this detention. This breaches several basic human rights of affected refugees including the right to be free from arbitrary detention and the right to be equal before the courts and tribunals,? Mr Keim stated.

Mr Keim said that the Bill includes several initiatives that would improve matters a little. He noted: ?the Bill provides for review of Adverse Security Assessments in the Administrative Appeals Tribunal (AAT), which provides refugees with the same procedural rights as citizens and permanent residents facing an adverse security assessment?.

However, difficulties arise when, as will usually be the case, the Adverse Security Assessment is ?classified?. Under current law, neither the affected refugees nor their lawyers are able to access the decision in order to challenge it.

The Bill deals with this by providing for the appointment of a ?Special Advocate? to make submissions on behalf of the affected person.

While acknowledging that this is an improvement on the existing law, Mr Keim expressed concern that Special Advocates only be used when absolutely necessary. ?Access to information that is the basis of an allegation against a person is crucial for open and public justice which is a fundamental principle of the common law.?

Mr Keim cautioned that the role of that Special Advocate needs to be performed in a context in which the rights of refugees to a fair hearing are assured.

Mr Keim suggested that, ?In the absence of overarching rights protections in Australia of the kind found in the European Convention on Human Rights, or the UK Human Rights Act, the Bill should itself specify the framework of procedural rights within which the use of a Special Advocate is permitted.?

ALHR has made a submission to the Senate Legal and Constitutional Affairs Committee in support of the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012. The submission includes suggestions as to how the Bill can be improved.

The full text of ALHR?s submission can be found on the Senate Legal and Constitutional Affairs Committee website available here.

Stephen Keim SC, President
Mobile: 0433 846 518

ALHR (Australian Lawyers for Human Rights) is a network of Australian lawyers active in practising and promoting awareness of international human rights standards in Australia. ALHR has a national membership of almost 2500 people, with active National, State and Territory committees.