By Ben Eltham, New Matilda. From

ASIO’s immigration assessments lack any kind of transparency, but a new High Court challenge may change that. Scrutiny is not inimical to security, writes Ben Eltham

“Quis custodiet ipsos custodes” — who watches the watchmen? So goes the famous Latin saying, generally attributed to Juvenal. Given the rapidly expanding size and scope of Australia’s national security agencies, the timeless aphorism continues to apply here and now.

Take ASIO, for example. The Australian Security Intelligence Organisation has enjoyed massive growth in its budget and staffing since 2001. ASIO has a wide ambit. According to ASIO’s website, the ASIO Act defines “security” as “the protection of Australia’s territorial and border integrity from serious threats, and the protection of Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on Australia’s defence system, and acts of foreign interference — whether directed from, or committed within, Australia or not”.

ASIO has an important role in Australia’s immigration system. Although the agency doesn’t have direct jurisdiction over the Department of Immigration and Citizenship, it is involved in security assessments of many asylum seekers. ASIO explains its role in this document. The document states that “a visa may not be issued (or must be cancelled) where ASIO determines the applicant to be directly or indirectly a risk to ‘security’ (as defined in the ASIO Act).”

According to this week’s Senate estimates testimony, there are currently 57 asylum seekers in immigration detention as a result of an adverse ASIO assessment. This figure includes six children.

The reasons for negative ASIO assessments are not made public. Nor are they released to asylum seekers or their lawyers. As a result, there is no way for asylum seekers to challenge the veracity of ASIO’s assessments. What information is an assessment based on? Is it accurate? Has it been subjected to appropriate evidentiary scrutiny? We don’t know, and neither do the people assessed.

It’s also worth noting that those involved have not been charged with any crime. Claiming asylum in Australia is perfectly legal under the Migration Act. But, once a negative assessment is decided, there is often no option for that asylum seeker’s repatriation. The result is a system of effectively indefinite detention, without charge.

This is the manifestly unjust situation that prominent human rights lawyer David Manne is now taking to the High Court, in a legal challenge to the constitutionality of Australia’s immigration security assessment regime. The case is being bought on behalf of a Sri Lankan refugee who has spent more than three years behind the razor wire.

As David Manne told Lateline last night, “I mean, the predicament is this stark: a refugee is locked up indefinitely on the basis of a negative security assessment made under a secret process on information he doesn’t have and for reasons he’s not told and without independent review or scrutiny of the decision. It’s like being sentenced to life imprisonment without even having been charged, tried and convicted. I mean, it’s like a secret trial. We don’t know the process, we don’t know the rules.”

Manne is right. Perhaps the cruellest aspect of the ASIO system is that there is no true judicial review of its assessments — not even by the Administrative Appeals Tribunal that normally deals with migration cases. Labor MP Daryl Melham chaired a parliamentary inquiry on immigration detention that reported in March. Upon its release, he called for judicial review of ASIO assessments, saying that “I do not accept … that someone who is a non-citizen gets second-class rights when it comes to their liberty.”

Now the Greens are introducing legislation to parliament to do just that. Greens Senator Sarah Hanson-Young also supports the High Court challenge, saying that “the legal challenge puts the government on notice that it must fix the laws that stop a person from being able to know ASIO’s statement of reasons against them.”

The Greens bill will seek to amend the ASIO Act. “It gives refugees a statement of reasons for an ASIO decision, create periodic six-month reviews of ASIO assessments, allow the Administrative Appeals Tribunal to hold merits reviews and creates a Special Advocate for sensitive national security matters,” Hanson-Young says.

A bill from the Greens will not overly worry the government. The prospect of a successful High Court challenge will worry it much more.

The challenge must stand a very good chance, especially given the outcome of the most recent High Court challenge to Australian immigration law, which over-turned the so-called Malaysian solution and caused major headaches for a government trying to appear tough on border security while simultaneously staying within the mandates of the UN’s refugee convention.

Given the decision on the Malaysian solution, and given the change in the make-up of the High Court in recent years, the government must be extremely concerned that the current system of ASIO assessments will be struck down.

But would that be such a bad thing? Why should ASIO remain a law unto itself in such matters? The issues of security may be valid. But then again they may not. Currently Australian courts and Australian citizens have no way of knowing.

Indeed, it may be that ASIO is simply protecting its turf here, and that many of its assessments would be over-turned once subjected to appropriate review. In the case of asylum seekers travelling to Australia from war-torn Sri Lanka, it remains unclear as to why foot soldiers in the Tamil Tigers movement would have any motive or opportunity for terrorism on Australian shores. Even if there are genuine security concerns at play here, the erosion of fundamental liberties like the right to a fair trial seems a high price to pay

For its part, the Opposition steadfastly maintains that there is no problem with ASIO assessments. “Let them rot” seems to be the sentiment from Scott Morrison and the Coalition. Then again, as the pursuit of Craig Thomson shows, for many in the Coalition it seems that the legal niceties of judicial review and presumption of innocence are only impediments to the effective pursuit of political gain.

And what of the Labor government? On this issue at least, neither Nicola Roxon nor Chris Bowen have had any statements to make. Bob Carr has been busy though: he’s announced that government will be releasing Indonesian children locked up in Australian jails on people smuggling charges. As a result, he’s also had to defend the government against charges that it has done a deal with Indonesian President Susilo Bambang Yudhoyono on the issue, in return for clemency for convicted drug smuggler Schapelle Corby.

“If there were no Schapelle Corby in a Balinese prison we’d still be releasing minors, kids on fishing boats who’ve been collected through people-smuggling,” Carr said yesterday.

“We’d be releasing them because it is plainly indecent to have in Australian adult jails kids from Indonesia who’ve been picked up on fishing boats being misused for people-smuggling.”

So there you go: there is a role for decency in Australian detention policy after all. It does beg the question about how “indecent” it is to lock up innocent people indefinitely without charge. But that’s Australian immigration policy for you: a morass of self-interest, where politicians who should know better refuse to do the right thing, because they fear it will cost them votes.