Lock them up and throw away the key?

There is quite a bit of current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment. The fad for secret evidence provisions had its genesis in reaction to 9/11, but gained momentum from State government reactions to the activities of criminal bikie gangs.

In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police 1, despite arguments from the bikie gang that provisions of WA “anti-fortification” legislation offended the Kable doctrine, the High Court held that the taking of secret evidence did not offend fundamental notions of judicial power. It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself. Secret evidence provisions have been upheld previously (on grounds of unacceptably compromising the integrity of ongoing investigations or sources of criminal intelligence), but they have usually at least allowed the defendant’s counsel to know the evidence and be able to argue against it.

In Gypsy Jokers, the majority decided that the Court itself was perfectly capable of ensuring that justice was done; there was no need for either the party or counsel to be told. Also now see K-Generation Pty Ltd v Liquor Licensing Court 2, which holds to similar effect that keeping evidence secret from a party and their counsel does not of itself offend basic notions of judicial power.

It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself.

More recently, the High Court has struck down aspects of more general “anti-bikie” legislation in South Australia 3 and New South Wales 4 as offending the Kable doctrine, which forbids State parliaments from vesting in State courts powers or functions apt to undermine public confidence in the integrity, impartiality and independence of those courts. However, both Acts contained “secret evidence” provisions similar to those held valid in Gypsy Jokers and K-Generation, and the Court did not comment adversely on those aspects of the legislation. It seems safe to conclude that no constitutional challenge to the validity of similar provisions, including the ASIO regulations affecting refugees, is likely to succeed.

However, the practical plight in which these refugees find themselves is much more dire in human rights terms than that of bikie gangs, for whom many Australians will have scant sympathy despite the evidently draconian nature of these laws. “Rough justice for roughnecks” is a slogan familiar from old Phantom comics and which encapsulates the prevailing public attitude. The situation of refugees in immigration detention is very different, as legal academic Spencer Zifcak explained in The Australian last week:

LAST night, about 50 people in Australia went to sleep not knowing whether they will ever be released from immigration detention.

These people have committed no crime. They have spent more than a year in detention seeking to demonstrate that they are refugees. At the end of that process, they have been found to be genuine refugees.

That is, their case that they would be persecuted if they returned to the country from which they fled has been accepted.

They had the fair and legal expectation that they would then be released so as to pursue new lives either in Australia or some third country that would accept them for resettlement.

Yet they are still locked up.

This is because, after having been determined to be genuine refugees, these 50 individuals received adverse security assessments from ASIO. Those with such an assessment must be detained, normally pending their deportation. They have an entitlement to appeal to the Commonwealth Administrative Appeals Tribunal against their continuing detention. But they cannot win.

This is because refugees who are assessed adversely by ASIO are not, in law, permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it.

The considerations that guide the process of adversely assessing a person are not found in the ASIO Act. They are found in regulations made under the act. But the regulations are not made publicly available.

Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence. We know only that a person may be adjudged as a risk if that judgment is consistent with the requirements of security.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Under national security information legislation, the federal government may require that security-related evidence be withheld from an applicant. It may also require that the evidence be withheld from the applicant’s legal representatives.

Similarly, judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk.

That is why, following the High Court’s deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque.

Zifcak’s “Kafkaesque” label is fair enough in those circumstances, but he does not propose a workable solution to the evident public policy dilemma. Presumably at least some of the adverse ASIO assessments correctly conclude that the persons concerned represent real and serious security threats to Australia. They can’t just be released into the community if they have significant international terrorist or organised crime links, nor can sensitive intelligence information be disclosed to them that may put sources, methods or even lives at risk.

On the other hand, and despite the High Court’s rather minimalist conception of the fundamental requirements of justice, there really is a serious need for a better solution that balances the competing public policy considerations of national security and individual justice. As Justice Brennan observed many years ago in in an early Adminstrative Appeals Tribunal decision on similar “secret evidence” provisions (Pochi):

There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Nevertheless, if an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Certainly oversight of ASIO by a parliamentary committee, which is the only real accountability constraint currently imposed, is nowhere near enough. Like ASIO itself, politicians will inevitably err on the side of extreme caution when it comes to matters of national security and terrorism. No-one wants to take a human rights-oriented approach in case a new September 11 or Bali bombing should occur as a result.

So what is to be done?

Human Rights Commission President Catherine Branson advances some constructive proposals in yesterday’s Age newspaper:

The Australian government has an indisputable responsibility to safeguard our national security. That is our right and what we expect and require as Australian citizens and residents. However, it is my firm belief that this sovereign duty can be realised simultaneously with the protection of human rights. And that is a belief I share with many others, including: the United Nations High Commissioner for Refugees; numerous domestic and international experts in security and refugee law; the majority of the joint select committee on Australia’s immigration detention network (which handed down its report in April of this year); and the governments of many other democracies around the world.

We must find solutions to the circumstances of people who have received adverse security assessments. And we must find them fast. The human costs being paid make not doing so untenable. …

So what can be done to create a fairer system? The simple answer to that is that there are several models and options to explore. Comparable jurisdictions, such as Britain, Canada and New Zealand, have developed more transparent and equitable systems that could guide our own approach.

And various recommendations for our domestic context have already been made – for instance by the parliamentary committee to which I have referred.

These recommendations include allowing refugees to challenge the merits of an adverse security assessment in the Security Division of the Administrative Appeals Tribunal. This would simply extend to refugees a right that already exists for Australian citizens and others. And it would not require public disclosure of sensitive intelligence.

In other countries appeals processes use special advocates who are security cleared and bound by stringent confidentiality requirements so that they can receive certain types of classified information on behalf of people deemed to pose a risk. Without such a review process, it is impossible to detect if a critical error has been made – such as a mistake over identity or a failure to identify false intelligence perhaps created maliciously.

Consideration could also be given to introducing a system of graded risk assessments. This would allow for the management of a specific risk according to how serious it is. Such an approach would probably find that a good number of people assessed to pose a risk could nonetheless safely live in a community setting with appropriate conditions or controls. These kinds of arrangements have been adopted in other countries.

As the New Zealand Court of Appeal has said, it is obvious that all risks to national security don’t call for equal treatment, and it is also apparent that different risks can be identified and distinguished.

Australia can and must do better. I firmly believe that we have the maturity, compassion and experience to protect human rights, as we must under international law, while at the same time safeguarding our national security. It will require strong political will and conviction. But there is too much at stake for us to do nothing.

Update – See Sinclair Davidson over at Catallaxy on this topic, as does Chris Berg at ABC Unleashed.

  1. (2007) 234 CLR 532
  2. (2009) 237 CLR 501
  3. South Australia v Totani (2010) 242 CLR 1
  4. Wainohu v New South Wales (2011) 243 CLR 181

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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39 Responses to Lock them up and throw away the key?

  1. This wouldn’t be such a problem if the refugee assessments were more realisitic.
    The prevailing attitude: Arrive & you’re in!
    Public sympathy for “refugees” may be a little more forthcoming if illegal arrivals were less apt to, upon sighting the RAN, do things like: Scuttle the scow from under themselves, throw their mobile phones overboard, turn out to have “lost” their passport, etc etc etc.

    • Julie Thomas says:

      Steve so what are you saying? These are bad people and you’d like them better if they behaved with the dignity and the high standards of honesty and decency that we western people always display?

    • Nick says:

      SATP, public sympathy for refugees would be more forthcoming if sections of the public weren’t so deluded into thinking different coloured people who speak different languages *cause crime waves*, and *dilute Australian culture and values* etc etc etc

      “I have no problem at all with genuine refugees who wait their turn [in any country which isn’t this one]”, asserts the bigot. Except that he/she does, and it takes very little prodding to reveal them. Won’t assimilate, won’t speak English, doesn’t dress like us, too prone to violence, too poor, won’t get jobs, take all the jobs etc etc etc

      Whingeing about “lost” mobile phones and passports (from those simply playing the hand they’ve been dealt) is just convenient rhetorical cover. It makes it ok to lock up *all refugees* indefinitely — because we don’t want ’em here.

  2. Mindy says:

    The Dept of Immigration must be sniggering up its sleeve everytime it reads an article like this. The assessment isn’t the problem, it is what Immigration does once the assessment has come through. The assessment is just the tool, Dept of Immigration decides what to do with it and they have decided that these people must remain in detention indefinitely. You are talking to the wrong Minister.

  3. Katz says:

    The demands of instrumentalities of the security state for untrammelled power are potentially inexhaustible.

    Legislatures surrender to these demands because they are electorally popular.

    Not so long ago the term “Star Chamber” was a term of horror. Now it is becoming a matter of pride.

    Back in 1951 Australians voted against banning the Communist Party. Communism represented a threat to the status quo that was orders of magnitude greater than any threat posed today. Yet Australians relied upon the ordinary operations of the judicial system to discipline and to punish any communist malefactor.

    The current outrageous powers of ASIO are a product of popular fear, carefully nourished.

    Perhaps Australians should be taught how to fear Star Chambers more than foreign dissidents on the run.

  4. conrad says:

    It would be interesting to know to what extent the graded assessments would actually change things. Obviously some of those locked up would still be a security threat even with a system.

    It might also be nice if there were mock-examples of who is kept in and why rather than complete secrecy so people could actually get some idea of who is being locked up indefinitely. That way it might be possible to ascertain whether releasing some of them would be okay to the general community.

  5. Pedro says:

    My only comment is that I think judicial or administrative appeals are inappropriate for certain decisions. Rezoning is one and (at least some) immigration decisions are another. Any time the decision is one of policy, as compared to reference to a law or standard, it ought to be made by a politician or delegate because we elect politicians to make those decisions for us. That is not to say we don’t have an interest in making sure the national security assessments are fair and balanced and I’m not arguing against judicial review of the process. Ultimately those immigration decisions are based on assessments of risk and character.

  6. Yobbo says:

    The human rights commission “solution” seems to involve finding ways to release suspected terrorists from detention. Why don’t any of their “solutions” involve sending them home for a trial? Could it be that they have some sort of unacknowledged agenda?

  7. Yobbo says:

    Communism represented a threat to the status quo that was orders of magnitude greater than any threat posed today. Yet Australians relied upon the ordinary operations of the judicial system to discipline and to punish any communist malefactor.

    You seem be missing the point here Conrad. How would the Australian judicial system deal with people who have not yet committed an offence in Australia but were known to have done so in their home countries?

    If they were tourists they would just be deported at their own cost. Because of our committment to the UN refugee convention we can’t do that with refugees.

    You and the HRC are effectively saying the best way to deal with these people is to release them into the community, wait until they commit a crime, and then charge them under Australian criminal code. That’s all well and good for everyone except the future victims of the crime.

    • conrad says:

      I think you mean Katz ,Yobbo.

      As it happens, I think the only way to really understand this would be to get rid of the secrecy issues, and I find it hard to imagine what secrets they are really trying to hide that would make any difference to Australia’s security.

      It’s easy to see both sides — For example, maybe people are really getting locked up unfairly. Alternatively, it isn’t hard to imagine a situation like the US where they have Uighurs that were caught fighting in Afghanistan, but can’t give them back to China for obvious reasons (the Chinese would love them even less), and of course no-one else wants them (I believe they even tried to give them to other “neutral” countries, although no-one accepted). So the best they can do is give them back to Pakistan/Afghanistan and then start fighting them again or simply hold them forever.

  8. Katz says:

    How would the Australian judicial system deal with people who have not yet committed an offence in Australia but were known to have done so in their home countries?

    That is precisely the situation of members of groups like the Ustashi. Indeed, successive Australian governments turned a blind eye to the training of insurgents who smuggled themselves into Yugoslavia to cause mischief.

    While I didn’t like the pro-right partisanship of ASIO in the 1950s and 1960s, there was never any serious attempt to subvert the operation of the judicial system or to remove the civil rights even of persons who trained for insurgency in another country.

    • Lolita says:

      Fat chance of ASIO being nice to *communists* in the context of the Cold War, Katz. Even now, communists should not get good treatment as they supported and continue to support an ideology and former country that committed countless atrocities and was far from democracy,

  9. Tel says:

    ASIO have a very important job to do, which is ensuring the the utmost, that their budget next year is at least as big (or bigger) than it was last year. In this respect they are exactly the same as the Dept of Immigration, or any other government department you care to name. If ASIO ever fail to achieve this task for a number of years running they will be removed and replaced by someone who can do better.

    I think we keep coming back to the theory that when the main military force of your nation consists of massed ranks and cheaply manufactured equipment (e.g. Athenian archers, French musketeers, American victory ships) then you will end up moving into a Democracy. When your main military force consists of elite warriors and exceptional equipment (e.g. medieval heavy cavalry or Japanese Samurai) then it inevitably pushes you toward a feudal system.

    It’s a bit of an uncomfortable fact, but the people who listen to our phonecalls and scan our Internet traffic for keywords are the elite warriors of the modern age. Having privacy of any sort must be considered equivalent to bearing arms. If ASIO and Immigration want to arrange a little demonstration to convince the peasantry that they should dig deep when it comes round to collecting the protection money, that’s just the way these systems work. I mean, how would you go about shaking down a recalcitrant bastard like myself?

    But you know, probably this will all happen regardless of what we say and what we think. You guys wanted government power, so don’t be completely shocked when that power turns into the thing intrinsic to itself, not the thing that you feel you get to decide it ought to be.

  10. desipis says:

    That’s all well and good for everyone except the future victims of the crime.

    I’d rather have a few more victims in the country than a few more victims of this country.

    • Pedro says:

      Yet you can probably imagine that no pollie or officer wants to get the blame for letting in the next abul nidas

  11. Yobbo says:

    Obviously desipis you are assuming that everyone being held indefinitely is an innocent victim of a mendacious government agency. What evidence do you have to believe that?

  12. Peter Patton says:

    Branson is scum, and should be in jail. Just read this.

    However, it is my firm belief that this sovereign duty can be realised simultaneously with the protection of human rights. And that is a belief I share with many others, including: the United Nations High Commissioner for Refugees; numerous domestic and international experts in security and refugee law

    How is this not treason? She is using a fortune of taxpayer’s money to undermine Ausralian democracy. She defers to foreign anti-democracy activists.

  13. jennifer says:

    I don’t think that arguing for due process in any way undermines Australian democracy – it might even enhance it.

    And due process is the only issue worth considering here. The question is, are the processes fair and in line with judicial and administrative review processes in other policy areas? National security is sensitive – but sensitivity shouldn’t exclude accountability. And lets be a little subtle – accountability does not mean a glasshouse – review by the Security Division of the AAT seems like a logical solution. It is hard to believe that ASIO couldn’t benefit from a dose of scrutiny. I wonder just how slender some of those proofs can get?

  14. Ken Parish says:

    Don’t argue with Greenfield/Patton. Just ignore him. That way he doesn’t come back too often. It’s the classic “don’t feed the trolls” strategy.

  15. jennifer says:

    … suspected as much but got self- indulgent toward the end of the thread.

  16. conrad says:

    “What evidence do you have to believe that?”

    No-one has any evidence for or against Yobbo apart from ASIO (who no doubt worry about their own budget, which Tel notes, and whose budget has also grown astronomically in the last few years — are you trying to say here than none of these sorts of things would ever play are role in what they do?). Even if ASIO won’t tell people exactly why they are holding them (including the refugee), I still don’t see why they can’t classify them as something like “significant terrorist threat”, “previous major fraud”, “violent criminal”, etc. .

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  18. thefrollickingmole says:

    Spotted this over at the cat, thought Id chuck my 2 bob in.

    And congrats on not just saying something silly like “the solution is easy”..

    Having worked there i can tell you of at least one group held in a similar fashion back in around ’99.

    What basicaly happened was a group of “irregulars” fighting the Taliban had a once in a lifetime heist in Afghanistan, the older bloke in charge decided they should get out.

    We recieved a pretty obvious military unit, the older man in charge kept very quiet, the younger blokes did most of the talking.

    They were screened out by “security agencies” and held in what we called the “departure lounge”, we had about 8 blokes in it at the time, screened out and not going through the system. No news, no outside contact, and confined to one small rec area and a set of units.

    It really is a bad idea to do this to people, officers could only say we didnt know why they were held outside the system, and it caused a lot of stress and problems for everyone.

    Eventualy one of the officers (not me, but I should have) rang an immigration lawyer and, after a short time those 30 were granted access to the normal system.

    In short the facts “known” were.
    They were a military unit
    They had been fighters in Afghanistan (pre 9/11)
    It was unknown what actions they had done in Afghanistan.
    It was almost certain they wouldnt cause any problems in Australia (beyond the norm)

    But that said I am uncomfortable with the ex Tamil Tigers, the boys we got from them were sent over to earn money to send back to fund the Tamils. Nearly all had family members left in tamil territory to make sure the boys did what they were supposed to.


    So you have the terrible situation of, yes the boys wont be a threat to Australia, but allowing them to fund the Tigers means you are allowing the funding of a savage organisation that routinely abuses human rights and engages in terrorist activities.

    Now the problem is, how are individuals judged if they are members of criminal or terrorist organisations?

    Now the human rights lobby isnt keen on that prickly issue to be adressed, too many terrible perverse results like the tamil one. On the other hand the existing regime sees problems like the Afghan group I mentioned, all of who recieved visas in the end.

    I agree there should be Judicial oversight, but ASIO wouldnt survive 10 years of “lawfare” waged by pollyanna rights actavists. Should people be judged by the groups they are members/organisers of? At what level does membership count against release? Is fundraising for a terrorist group, but not one that threatens Australia reason enough.

    Again, Immigration is hard, its a lawyers playground, and irregular entry is just a nightmare of unintended consequences.

  19. Ken Parish says:

    Thanks mole*

    That’s a really invaluable contribution from a practical and experienced perspective. As you say, human rights considerations can cut both ways.

    I think it WOULD be feasible at least to allow ASIO-flagged refugees to be represented by security-cleared barristers. There are quite a few barristers around who have been military reserve lawyers for years and have a strong understanding about national security and the need for it. It should be possible to ensure that any merits review proceedings were conducted in a streamlined way that didn’t turn it into a “lawyers’ picnic”.

    *Reminds me of the way some of my mates used to talk back when I was a yoof. Mind you that related to a different context and gender …

  20. Katz says:

    Fascinating insight into practicalities, Fmole.

    In the end, such determinations will inevitably be politically driven.

    Australian governments have always winked at some insurgent/terrorist movements and disapprobated others.

    The human rights procrustean bed of juridical consistency simply doesn’t fit in this world.

  21. thefrollickingmole says:

    Good point, there was a case some years ago where people accused of funding the Tanils were not prosecuted sucessfuly because the government didnt have them listed as a proscribed organisation..

    Fortunately we dont have the US/IRA level of funding, but it is a disgraceful abuse of the asylum system, organised and run by a terrorist group.

    And its worth mentioning almost to a man the Tamil boys were nice blokes, happy to be out of Sri Lanka, and unlikely in the extreme to threaten Australian security.

    But if the boot was on the other foot and Sri Lanka was funding a violent Aboriginal (for a lazy example) seperatist movements in Oz through refugees, Id imagine wed be a little cranky about that.

  22. Sinclair Davidson says:

    Chris Berg has added more to the debate.

  23. Ken Parish says:

    Many thanks Sinclair. It gives me quite a warm inner glow about the utility of “social media” and online discourse generally. Often it seems we’re just howling past each other in the dark. I had discussions with both Sinclair and Chris about this issue, on both Twitter and by email exchange, because it seemed to me that it was one that spanned the usual partisan divide.

    We can only hope that the scrutiny and concerted public expressions of concern generated across the ideological spectrum may cause the Gillard government to reconsider its intransigent position and the Coalition to resist the temptation towards expedient opposition to any proposal for constructive change.

    As we’ve discussed, there are viable ways to balance the competing public interests involved in a much more satisfactory way than at present. We would no doubt still end up with some who would have to remain in detention because they really DO pose major dangers to national security, but there will equally certainly be others who could after a meaningful hearing conducted under suitable confidentiality constraints be released into the community under stringent conditions.

    Those might include conditions on where they could live and work, regular reporting conditions, wearing of tracking devices and bugging of premises. All or most of those conditions have previously been imposed on Australians subject to control orders under existing legislation e.g. “Jihad” Jack Thomas.

  24. Yobbo says:

    Funny you should bring up Jihad Jack, Ken. A classic example of a traitor who should be imprisoned indefinitely, and would have been had the “jihad” been a declared war between Australia and Jemaah Islamiah. These are the kind of people that luvvies want released into the community.

    • Julie Thomas says:

      Luvvies?!! Yobbo, what a quaint term of abuse; it is so last decade though. Time to move on you know, unless you are one of the blokes that Mr Denmore refers to as “grumpy menopausal men and bitter old culture warriors with intellectual inferiority complexes”?

  25. Katz says:

    Jack Thomas’ conviction was achieved entirely by evidence extracted in Pakistan under torture.

    I wonder what Yobbo would refuse to admit to under the same duress.

    • conrad says:

      Since some people want laws to stop bikies before they’ve committed any crimes, it’s seems unlikely people wouldn’t want laws to punish people being caught fighting for a regime that makes human rights in North Korea look good. No doubt the same people that think Jack Thomas is just fine and dandy will be the same ones that will complaining once we start seeing people get their hands cut-off, girls killed for going to school etc. .

      • Katz says:

        Conrad, please desist from verbalising your interlocutors.

        I do not think that Thomas is “fine and dandy”, any more than I think that you are “fine and dandy”.

        Such an assessment has no judicial function and is therefore irrelevant to the case.

      • conrad says:

        This is the difference betweens morals and law, which it seems to me is one of the things that comes out of this post.

        Morally, for example, I don’t think people should be held indefintely based on secret evidence, but obviously the law thinks otherwise. Jack Thomas appears to have been lucky in the other direction.

    • Ken Parish says:

      While Katz’s statement about Jihan Jack is formally correct, Thomas also later repeated the substance of his confession in a Four Corners interview, was recharged and retried but found not guilty of all but a passport offence.

      However the bottom line is that by his own admission Thomas took money from Al Qaeda to start a terrorist cell in Australia (but claims to have later changed his mind). In those circumstances it was entirely appropriate in my view that he was subjected to stringent conditions on a control order under anti-terrorism laws. Similarly, any of the refugees currently in detention (because of adverse ASIO assessments) where verified concerns are of a similar nature should either be kept in detention or similarly released only under very tight surveillance and other conditions.

  26. Katz says:

    While Katz’s statement about Jihan Jack is formally correct, Thomas also later repeated the substance of his confession in a Four Corners interview, was recharged and retried but found not guilty of all but a passport offence.

    Shorter Ken: by constitutional judicial process, a jury declared that Jack Thomas was innocent of terrorism.

    If you are content to allow the executive arm of government to exercise judicial power over an Australian citizen, I can do no more than point out the depths to which that slippery slide may take human rights in this country.

    • Ken Parish says:

      Control orders, like scheduling under mental health legislation, are about future risk and community protection rather than punishment for an existing offence. We reasonably impose restrictions on the liberty of seriously disturbed people who foreseeably present real and serious risks to the safety and lives of those around them, similarly with those with established clear links to terrorist or organised crime groups. As such, while such restrictions on liberty are clearly necessary, they need to be surrounded by greater procedural and other safeguards than apply with the criminal law, not less.

      That is the problem with the situation of refugees and adverse ASIO assessments: the lack of safeguards and fairness. My point is that, provided a refugee has a fair chance to test and refute adverse evidence (e.g. through a security-cleared advocate before a tribunal that IS allowed to know the evidence even if the refugee isn’t), restrictions on liberty MAY be justified depending on the circumstances. In my view a refugee with a profile and background like Jihad Jack Thomas SHOULD be subject to significant restrictions for protection of the community.

  27. Katz says:

    Control orders may entail a broad range of restrictions and prohibitions.

    Clearly there are levels of control that are commensurate with the perceived risk and there are levels of control that are excessive.

    As the matter stands, ASIO decides not only the requirement of a control order but also the methodology of control.

    Clearly, a judicial process could be introduced to assess the level of future threat and to impose the appropriate level of control.

    This precedure would help to mitigate the inordinate power of ASIO in these matters.

  28. Nick says:

    Ken: “like scheduling under mental health legislation”

    It would certainly be odd if a patient or their counsel weren’t informed of why they had been involuntary admitted, given regular updates on the progress of their treatment, and some kind of reasonable idea of what was expected to improve in their condition before they could be released.

    conrad: “Morally, for example, I don’t think people should be held indefintely based on secret evidence, but obviously the law thinks otherwise.”

    Terrorism is an *emergency*! The public are supposed to understand that all bets are off. In an emergency, we can suspend and rewrite the law however we wish. I merely have to conjure up the words ‘potential terrorist’, and I’ve already gone a long way toward justifying somebody’s indefinite detention. That’s the power of securitisation politics in full swing. It has very little to do with morals or the law thinking otherwise. Rather, the maintenance of belief that certain actions are *necessary* in spite of them.

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