‘Fair Shake of the Sauce Bottle’: Reform Options for Making ASIO Security Assessments of Refugees Fairer

Abstract

The security assessment of refugees by the Australian Security Intelligence Organisation (ASIO) has frequently involved the virtual elimination of procedural fairness and resulted in indefinite detention. Around 54 refugees who arrived since 2009 remained detained by late 2012 after receiving adverse security assessments. Most of them did not receive reasons or evidence, or a summary of reasons or evidence. At most, some were notified of limited matters during interviews by ASIO, but some were not interviewed at all. Binding merits review is entirely unavailable, and the effectiveness of judicial review is severely limited by the difficulty of commencing proceedings in the absence of evidence, by the statutory and common law diminution of procedural fairness, and by the availability of public interest immunity to prevent disclosure of relevant evidence. The High Court decision of M47 in October 2012 did not affect the possibility of marginal procedural fairness or indefinite detention. The creation in October 2012 of an Independent Reviewer of ASIO assessments somewhat improves the fairness of the process but it remains deficient in key respects, not least because the reviewer possesses only powers of recommendation and the new procedure remains insufficiently fair. This article proposes more comprehensive reforms to provide a genuinely fair hearing while protecting security, addressing issues of notice, reasons, the degree of disclosure, merits review, a special advocate procedure, periodic review, and alternative security measures to detention. It also advances a more ambitious proposal to transfer the power to issue security assessments from ASIO to the courts.

Keywords: International Covenant on Civil and Political Rights (ICCPR), Australian Security Intelligence Organisation (ASIO), arbitrary detention, indefinite detention, national security, classified information, secret evidence, procedural fairness, right to a fair hearing, refugees, Special Advocate

JEL Classification: K10, K30, K33