A dystopian nightmare for refugees and their families

Recent reports concerning the detention of refugees branded security threats by the Australian Security Intelligence Organisation read like stories out of a dystopian novel. Fifty-one men and women – all found to be refugees under the Refugee Convention, and therefore entitled to protection in Australia– have been subject to adverse security assessments by ASIO. The men and women have received no information about the criteria used by ASIO to conduct the assessment, and no details of the evidence that has been used against them.

These 51 men and women have not been charged with any offence, and they will not be tried. In the absence of any opportunity for merits review – the ASIO Act 1979 expressly precludes non-citizens from applying for merits review to challenge ASIO's adverse security assessments – these individuals, and possibly their children, will be detained indefinitely, with no prospect of release.

The scenario invokes images of Kafka’s The trial, in which Josef K’s lawyer warns of the difficulties of presenting a defence when “the proceedings were not only kept secret from the general public but from the accused as well”.

The difference here, of course, is that under current laws these men and women are not even afforded a trial.

Refugees subject to adverse security assessments find themselves caught in a legal black hole. Unable to return to their home country for fear of being persecuted and denied the opportunity to live freely in Australia, they wait in limbo while the Government seeks agreement of another country to take them. As Julian Burnside QC observed in a recent opinion piece that is likely to be a “hard sell”.

It should come as little surprise that this resulting state of limbo has caused extreme anxiety and mental suffering. Reports of multiple suicide attempts and the fact that seventy per cent of detainees are supplied with anti-depressants, anti-anxiety medication or sleeping pills suggest a system, and human lives, in crisis.

The Howard, Rudd and now Gillard governments have consistently attempted to put asylum seekers and refugees beyond the protection of Australian law. Recent decisions of the High Court of Australia have struck down government attempts to exclude asylum seekers from procedural fairness guarantees and fromAustralia’s international legal obligations.

The High Court of Australia will likely have yet another opportunity to thwart the Australian Government’s crusade for exceptionalism after documents were lodged with the High Court last week challenging the denial of procedural fairness to refugees who have received an adverse security assessment.

At an international level, there is no doubt that the arbitrary detention of refugees, with no information, no charge and no opportunity for judicial review, constitutes a breach of procedural fairness and a violation of international human rights standards. Article 9 of the International Covenant on Civil and Political Rights provides the right to liberty and security of the person, the right not to be detained without charge and the right to access a court to challenge the lawfulness of detention. Article 7 of the Covenant provides the right not to be subjected to cruel, inhuman or degrading treatment.

These rights must be guaranteed not only to Australian citizens, but to all individuals within the territory and jurisdiction of Australia.

Human rights can be limited in the name of certain public policy goals, including national security. However, such limitation must be necessary and proportionate. National security is, of course, a crucial policy priority. Mechanisms must be in place to assess and, where necessary, contain genuine security risks. But national security is also an elastic, self-justifying concept, which perhaps explains why it is often invoked without evidence.

Lord Hoffmann, a senior judge in the UK House of Lords, once noted that, while national security risks are serious, the real threat to national life and political values comes from laws that arbitrarily deprive human beings of their liberty. Our own feelings of security may in fact be diminished by our Government’s willingness to allow for indefinite detention without reason, without charge, and with no opportunity for judicial review.

Critically, where an Australian citizen is subject to an adverse assessment by ASIO they are provided with an opportunity to challenge that decision via a merits review procedure. The express exclusion of non-citizens from the protection of merits review is difficult to justify.

A solution has been on the table for some time. Both the Australian Human Rights Commission and the Senate Joint Select Committee onAustralia’s Immigration Detention Network have recommended the extension of current ASIO merits review to refugee security assessments. This would provide refugee applicants an opportunity to hear and test the evidence said to warrant their continued detention.

The proposed reform – which strikes a judicious balance between security interests and the human rights of the individuals concerned – was accepted at the Australian Labor Party’s 2011 national conference, with the party resolving to give legislative effect to the recommendations.

However, to date we have seen no legislative action. Neither the Immigration Minister nor the Attorney-General has provided any explanation as to why the Government is yet to implement the proposed reforms. The Opposition has characteristically dismissed the reform recommendations as “absurd”.

Meanwhile, 51 men and women are languishing in a state of legal limbo, with three men attempting to take their own lives.

The situation faced by these 51 men and women is both nightmarish and irrational. Unfortunately, unlike the story of Josef K, this is no cautionary parable. This is real life, happening in the suburbs of Melbourne and Sydney.

Australians should not stand for it, and it is time for the Government to act.

This is an extended version of an article that appeared in The Drum on 24 May 2012.

Jason Pobjoy is an Australian qualified lawyer currently reading for a PhD at the University of Cambridge and Katie O’Byrne is an Australian qualified lawyer currently reading for the LLM at the University of Cambridge.