Right now there are more than 50 people in Australia who face indefinite detention without being charged with a crime. These individuals have been found to be refugees but are subject to adverse security assessments made by Australian Security Intelligence Organisation. They include a family with three children, the youngest of which was born in detention. Some of the affected refugees have been in detention for more than two years.
These individuals are in an invidious position. They do not know what information ASIO has relied on, or the reasons for the adverse security assessments. They have no right to legal representation if interviewed by ASIO. They have no ability to challenge the assessments or obtain an independent review. They cannot return to their country of origin due to their well-founded fear of persecution, and there is no third country that will accept them for resettlement.
Solutions to this untenable situation have repeatedly been identified from human rights organisations, legal bodies and government inquiries.
The simplest of these is to amend the ASIO Act to allow refugees to challenge ASIO’s decision. This would stop the unjust practise of adverse assessments being made by reference to secret criteria applied to secret evidence.
The Administrative Appeals Tribunal (AAT) already has existing jurisdiction to hear appeals about adverse security assessments for Australian citizens and permanent residents. It has been recommended to successive governments that this jurisdiction be extended to refugees.
While in some cases it may not be appropriate to allow a refugee to hear the evidence against them, this doesn’t mean an independent advocate with security clearance cannot be appointed to hear the evidence and represent them.
However, allowing external review of ASIO decisions only fixes half the problem. For those found to have a negative assessment even after review, the only option is life imprisonment. Their refugee status means they cannot go home but government policy means they cannot be released into the community.
Even if there are legitimate security concerns, that is no justification for keeping people in detention for the rest of their lives. National security must be maintained in accordance with the rule of law and consistently with human rights standards. Depriving people of their liberty when no crime has been committed and there is no national emergency is what tyrants and dictators do. It has no place in a democracy.
Life in detention is a disproportionate (and unjustifiably expensive) response to any national security threat posed by an individual who has committed no crime.
There are no simple solutions to this dilemma. However, there are provisions in Australian law for the government to issue visas with strict reporting requirements. These visas are very restrictive but are a less severe measure than full time detention and are a much more sensible option for people properly considered to be threats to national security.