His action is to be applauded. The problem, which currently affects 62 people in Australian detention centres, needs to be solved urgently.
The problem is exemplified by the case of Ranjini. Shortly before Mothers Day, Ranjini and her two children, aged 6 and 9 years, were removed from the community and placed in detention at Villawood.
They are refugees: that fact is accepted by the Government. They are in detention now because their protection visas have been cancelled.
Why? Because ASIO has assessed them adversely on security grounds. They will not tell her why. The best guess is that her husband, who is dead, may once have been a driver for Tamil separatists in Sri Lanka. Even if that is true, it does not involve the woman and her children in any sort of offence, and it says nothing about their character.
They may remain in detention for years, perhaps forever. How can that be, in a free democratic country like Australia? It is the result of two court decisions which most Australians have never heard of.
First, if a person is adversely assessed by ASIO, they are not told what facts ASIO took into account in forming its views, so it is virtually impossible to show that ASIO was wrong.
A Federal Court case in 2011 illustrates the problem. Two people who had been adversely assessed by ASIO swore that they had never done or said anything which could bring them within the (very wide) reach of the security laws.
ASIO did not challenge that evidence, and did not produce any evidence to suggest that the people were a risk to security. ASIO argued that because the court did not know what it had taken into account when forming the adverse assessment, the court could not say that it had made a mistake.
That argument was accepted. If ASIO had got the wrong people, or had applied the wrong test, that remained hidden and beyond correction.
It is important to understand that an adverse assessment does not mean that the person is a terrorist or a danger to the community. The criteria for adverse assessments are incredibly wide, including that a person might represent a risk to the security of some other country.
If a person is adversely assessed by ASIO, they will automatically be refused a protection visa, despite having been assessed as refugees.
This creates a problem. A person who has been assessed as a refugee cannot be returned to their country of origin. This is because the central obligation in the Refugees Convention is the obligation not to return a refugee to a place of possible persecution (the obligation of non-refoulement).
In 2004, the High Court decided the case of Ahmed al Kateb. It held that a person who had been refused a visa but could not be removed from Australia could be held in detention forever. Al Kateb could not be removed from Australia because he was stateless. But the same principle seems to apply to a person who is refused a visa because of an adverse assessment by ASIO.
The government tries to remove refugees who are adversely assessed, but it’s not easy. They can’t be sent back to their country of origin, so we have to say to other countries, “We have a refugee here who has been adversely assessed on security grounds: will you take them?” That’s a hard sell.
The net result is that a person who is accepted as a refugee, but is adversely assessed by ASIO, will be refused a visa but cannot be removed from Australia, and cannot challenge the adverse assessment.
If this sounds like a nightmare, it is in fact happening already. There are now 62 people held in detention in Australia who we recognise as refugees, but who have been adversely assessed by ASIO.
They face a lifetime in detention, but no-one can tell them what they have done wrong. Jail for life without charge, without trial, without reasons, and without appeal.
On December 16, the Federal Court had to deal with the case of a boy, now aged 18, who has been in detention since he was about 15 years old. He is alone in Australia. In December 2011, he was adversely assessed by ASIO.
He can’t be sent back to his own country because he faces persecution there. He can’t be sent anywhere else, unless Australia persuades some other country to take him off our hands.
As the judge said: “The applicant will (thus) be a minor, in immigration detention, indefinitely and until he can be deported. That may be a very long time.”
This case, and the case of Ranjini and her children, raises three questions we should face squarely. The way we answer these questions will define what we are as a country:
Should any person be held in custody indefinitely, absent any allegation that they have broken the law?
Should any person be locked up indefinitely without being given a chance to challenge, in a meaningful way, the reason for their detention?
Should any child face the prospect of lifetime imprisonment?
At present, Australian law allows a child to be imprisoned (potentially for life) without having broken the law and without being able to challenge the reason for their imprisonment.
It is a scandal that our law allows this. Regardless of your views about refugees, I cannot think that many Australians would support such obvious injustice. Regardless of your views about refugees, we should all hope that this High Court challenge succeeds.
Julian Burnside AO QC is an Australian Barrister and an advocate for human rights and fair treatment of refugees.