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    Howard's war on asylum seekers and refugees: determined by terrorist xenophobia

Australia's response to asylum seekers in the Age of Terrorism

"The Australian Government describes the war against terrorism as 'a war against an enemy that is difficult to define and even harder to identify'."

"In this war more than any other, every inhabitant of Australia - whether citizen or non-citizen - is potentially the enemy."

"Already, and despite frequent assurances by political leaders that the 'war against terrorism' is not a war on Arabs or on Muslims, examples abound of Arabs and Muslims being treated as second-class citizens in Australia and other western countries."

Australia's response to asylum seekers in the 'Age of Terrorism'

by Savitri Taylor
Senior Lecturer, La Trobe Law
La Trobe University

First published on the website of
The Civil Rights Network.
This website is no longer current.

Introduction

As it moved into the 21st Century, the international community thought of terrorism as falling into one of two categories - national liberation terrorism and state-sponsored terrorism. However, since the attacks on Washington and New York on 11 September 2001, states have become concerned about a new category of terrorist.

These terrorists pursue goals that are less easily understood than those of either 'freedom fighters' or governments and they are harder to identify and track. That they are 'terrorists' is not, however, in doubt, because, terrorists are simply those who pursue their goals using tactics that we judge to be reprehensible, regardless of the legitimacy of the goals themselves.

Terrorists engage in unpredictable acts of violence against indiscriminately chosen targets to create in the entire population of a country a sense of pervasive and ever-present threat. The creation of this sense of terror is intended to pressure governments (or non-government actors) into meeting the ideologically-motivated demands of the terrorists.

'Freedom fighters' may choose to use terrorist tactics to overturn governments.

Governments may choose to use terrorist tactics to retain power domestically or to exert power internationally.

And al-Quaida may choose to use terrorist tactics to eradicate evil and establish God's Kingdom on earth.

Whether the various causes are just depends on one's point of view. It is the modus operandi that is illegitimate because it implicitly repudiates the moral premise of human rights law (that all human beings are of inherent and equal worth) by violating Kant's prescription of treating every human being as an end not a means.

The Australian government's main response to the post 11 September security environment has been the enactment of a package of counter-terrorism legislation. The package greatly enhances the investigative and other powers of the Australian Security Intelligence Organisation (ASIO) and other relevant Australian government agencies, creates new terrorism offences and implements Australia's obligations under various counter-terrorism treaties. [2]

Most relevantly for present purposes, the Security Legislation Amendment (Terrorism) Act 2002 (Cth) creates a wide range of new offences. These include engaging in a terrorist act, engaging in acts preparatory to a terrorist act, providing or receiving training for, or possessing things connected with, an actual or potential terrorist act, and being a formal or informal member of, or assisting, a terrorist organisation.

It should be noted that this package of counter-terrorism legislation has been trenchantly criticised for failing to safeguard adequately against human rights abuses being committed in the pursuit of national security. Leaving those issues to the side, however, the point is that the legislation is available for mobilisation against both citizens and non-citizens.

The only question that remains (and the focus of this article) is how Australia should deal with non-citizens who are thought to be a national security risk, but who have not actually committed one of the new terrorism offences or any others.

Reconciling Australia's International Protection Obligations with the War against Terrorism

expulsion

The preferred solution of most states, including Australia, in dealing with the problem of undesirable aliens (including potential terrorists) has long been that of expelling such aliens from the country. It is, of course, no solution to the international problem of terrorism simply to deflect potential terrorists to other destinations. In an increasingly interconnected and interdependent world, it cannot even be assumed that the deflecting state protects itself from the consequences of terrorist activity by such deflection. Despite all reason, however, the preferred 'solution' of governments remains expulsion (for a recent example see Forbes, 2003).

All states claim that it is their sovereign right to expel non-citizens entering or remaining within their territory contrary to the provisions of domestic law. Pre-11 September, however, states acknowledged that exercise of this sovereign right might in a particular case be restricted by the existence of international protection obligations owed to the non-citizen in question.

riding roughshod

Post-11 September they are less willing to do so and have sought to treat UN Security Council Resolution 1373 of 28 September 2001 as a warrant for riding roughshod over the rights of asylum seekers. Security Council Resolution 1373 is a decision of the Security Council made under Chapter VII of the UN Charter that requires states to take various steps to prevent and punish terrorist acts.

All members of the United Nations are obliged to accept and carry out Chapter VII decisions of the Security Council (UN Charter, article 25). Moreover, to the extent of any inconsistency, the obligation to implement such Security Council decisions prevails over all other treaty obligations (UN Charter, article 103). If there were a conflict between the international protection obligations of states and their obligations under Security Council Resolution 1373, therefore, it would be necessary to work out how the former obligations were modified by the latter. However, there is no such conflict.

conformity with human rights

Far from purporting to override the other international obligations of states, paragraphs 3(f) and (g) of the Resolution, which deal specifically with asylum seekers, both require states to take measures 'in conformity with international law' to ensure that refugee status is not abused. In fact, paragraph 3(f) particularises further that the measures taken must be in conformity with 'international standards of human rights'.

Even in the context of fighting the war against terrorism, therefore, states have no lawful excuse for failing to implement fully their pre-existing international protection obligations.

refoulement

Australia is a party to the Convention relating to the Status of Refugees (Refugees Convention) and the Protocol relating to the Status of Refugees (Refugees Protocol). The prohibition on refoulement is the key provision of the Refugees Convention. Article 33(1) of the Refugees Convention provides that no state party

...shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The term 'refugee' is defined in article 1A of the Refugees Convention, as modified by Article I(2) of the Refugees Protocol. However, articles 1D, 1E and 1F of the Refugees Convention then provide for the exclusion from refugee status of persons who would otherwise fall within the definition in Article 1A. A person who has committed an act of terrorism may be excluded under one or more of Article 1F's three paragraphs (see further Taylor, 2002a).

It is also the case that the Article 33(1) obligation does not apply in respect of a refugee whom:

...there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country (Refugees Convention, article 33(2)).

What a state is really saying when it invokes the Article 33(2) exception to the Article 33(1) non-refoulement obligation is,

'This person faces a real chance of being persecuted if returned to his or her country of origin; nevertheless we are going to expose this person to that risk in order to protect ourselves.' [3]

state threat vs individual danger

As Anthony Burke points out, it is often too easily assumed that 'the security of the self necessitates the insecurity and suffering of the Other' (Burke, 2001: 309). However, there may well be less draconian means of ensuring our own security than being complicit in the infliction of suffering on others.

For example, France dealt with one particular refugee, who was suspected of actively supporting a terrorist movement and formally determined to be a threat to national security, by ordering his expulsion but in lieu of enforcing that order requiring him to reside in a particular city and to report daily to the police. [4]

Even if removal is 'necessary' in the sense that there is no less draconian means of neutralising the threat to national security posed by a particular refugee, reliance on the Article 33(2) exception is subject to the requirement that there is proportionality between the danger to itself which a state averts by removal of the refugee, and the danger to which the refugee is thereby exposed.

Before 11 September, state practice on the whole supported such a requirement (Goodwin-Gill, 1996: 140). The proportionality requirement used to be recognised in official Australian policy (DIMIA, Protection Visa Procedures Manual, 2000, para. 6.3.6). However, present policy guidelines explicitly state that there is no such requirement (DIMIA, Procedures Advice Manual 3: Refugee Law Guidelines, 2003, para. 10.2.4).

cat and refoulement

As well as being a party to the Refugees Convention and Protocol, Australia is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 3 of CAT provides that no State party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Refoulement, for the purposes of article 3 of CAT is a concept similar to that contained in article 33(1) of the Refugees Convention. However, CAT does not allow for derogation from Article 3 under any circumstances (Paez v. Sweden; Committee Against Torture, 2001: para. 58(e)). The Australian Government formally accepts this interpretation of the Article 3 obligation (Migration Series Instruction: Minister's Public Interest Powers, para. 3.3.18). However, it appears to have no intention of implementing the obligation in absolute form (Migration Series Instruction: Minister's Public Interest Powers, paras 3.2.5 & 3.3.19).

iccpr and refoulement

Finally, Australia is also a party to the International Covenant of Civil and Political Rights (ICCPR). Unlike CAT, the ICCPR does not actually contain an express non-refoulement obligation.

Nevertheless, according to the UN Human Rights Committee, reading other provisions of the ICCPR in conjunction with Article 2(1) of the ICCPR leads to the conclusion that removal of a person to another state in circumstances that foreseeably expose the person to a real risk of violation of an ICCPR right constitutes an ICCPR violation by the removing state.

Australia accepts that the non-derogable rights in articles 6 (right to life) and 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) (and the Second Optional Protocol's death penalty prohibition) gives rise to a non-refoulement obligation (Migration Series Instruction: Minister's Public Interest Powers, paras 3.2.24-3.3.25).

It further accepts that 'a flagrant breach of other rights in the ICCPR may give rise to the [implicit non-refoulement] obligation especially where the alleged violation could result in severe or irreparable harm to the person concerned' (Migration Series Instruction: Minister's Public Interest Powers, para. 3.3.26).

It should be noted, however, that it is possible to derogate from most other ICCPR rights under article 4(1) of the ICCPR [5] and the Australian government may well attempt to rely on this derogation provision in relation to suspected terrorists. Whether any such attempt would be successful in the view of say the UN Human Rights Committee is another issue. [6]

It is not, however, an issue which overly concerns the Australian Government. The Government's view is that Australia's international obligations are simply factors to be considered in domestic decision-making and "can at times be outweighed by countervailing considerations" (Migration Series Instruction: Minister's Public Interest Powers, para. 3.2.6).

Australian Border Control Measures Post 11 September 2001

they may be terrorists

When the 11 September terrorist attack followed close on the heels of the Tampa incident, [7] the Australian Prime Minister, the then Defence Minister and some government backbenchers were quick to point out that there could be among those arriving in Australia without authorisation some persons with terrorist links (Atkins, 2001; Seccombe, 2001).

This was advanced as a reason for giving priority to border control considerations when dealing with unauthorised arrivals. The argument was that since it is often difficult to establish the identity of unauthorized arrivals, we cannot be confident that such persons do not represent a national security risk (Ruddock, 2002).

While the possibility that some unauthorised arrivals may be national security risks cannot be dismissed completely, it is necessary to keep a sense of proportion. ASIO conducts security assessments of all unauthorised arrivals. In not a single one of the 5986 security assessments of unauthorised arrivals it provided to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) between 1 July 2000 and 16 August 2002 did it assess that the person's entry into Australia would pose a threat to national security (SLCRC, 2002: para. 3.12). It is, in fact, more likely that some among the much larger number of relatively unvetted authorised arrivals will have terrorist links.

Finally, of course, Australia citizens (even those Australian-born) are not somehow perfectly immune to recruitment by terrorists. Nevertheless, the Tampa incident combined with the events of 11 September created a political environment that won the Federal Election for the Coalition. Of particular relevance in the present context, it also enabled the Australian government, in advance of the election, to secure very substantial changes to Australian immigration law and policy.

Most of the measures introduced affect unauthorised arrivals. All the measures have been represented as 'homeland defence' in a two-fold sense: defence against uncontrolled population movement into Australia and defence of Australia's right to continued existence.

soft security threat

The point in need of emphasis, is that irregular migration per se is not by any stretch of the imagination a threat to national survival. In other words, it is a 'soft' rather than 'hard' security concern. In fact, 'terrorism' itself is a soft rather than hard security concern. It threatens not the nation's survival but its 'way of life'. It is, of course, necessary to take seriously a threat to 'our way of life', but important to keep in mind that, by contrast to terrorism, irregular migration per se does not even present such a threat.

The problem is that by creating an environment in which the distinction between asylum seekers and terrorists can be, and has been, blurred, 11 September has also created an environment in which border control measures can be passed off as part of the 'war against terrorism'. So much so that after committing to the 'war', the Australian Government was able to get away with instructing the military that the border control operation it commenced in August 2001 in direct response to the Tampa incident was still to be regarded as its highest priority (as opposed to, say, the Afghanistan campaign) (Marr & Wilkinson, 2003: 143-4).

power to detain

Since 11 September 2001, Australian authorities have been given the power to detain and move any Australian ship or foreign ship, which is outside the territorial sea of a foreign country, if they reasonably suspect that the ship is, will be or has been involved in a contravention of the Migration Act 1958 (Cth). Australian authorities have also been given the power to order an aircraft to land and, if they reasonably suspect the aircraft is or has been involved in a contravention of the Migration Act, to detain and move it.

Any person aboard a detained ship or aircraft may be brought to Australia's migration zone or taken to 'a place outside Australia' (Migration Act, s245F). Thus far, four boatloads of potential illegal entrants have been intercepted at sea by the Australian navy and escorted back towards Indonesia pursuant to these provisions.

excision

Since most unauthorised boat arrivals were making landfall at Christmas Island, Ashmore and Cartier Islands and Cocos (Keeling) Islands, these places and Australian offshore installations are now defined to be 'excised offshore places'. A person who becomes an 'unlawful non-citizen' by entering an 'excised offshore place' is labelled an 'offshore entry person' (Migration Act, s5). New s198A of the Migration Act allows offshore entry persons to be taken to 'declared countries' as defined in the section. Thus far, offshore entry persons have been taken to Nauru and Papua New Guinea pursuant to this provision.

review, cat and iccpr

Protection claims made by persons taken to declared countries are considered by a DIMIA officer against Refugees Convention criteria (Illingworth, 2002a: 4). Persons found not to be refugees are able to request fresh consideration of their claims by a different, more senior DIMIA officer (Illingworth, 2002a: 5). At this review stage, formal consideration is given not only to possible entitlement to protection under the Refugees Convention but also to possible entitlement to protection under CAT and the ICCPR (Illingworth, 2002b: 248).

Wider humanitarian concerns are also taken into account at this stage (Illingworth, 2002b: 248-9). Offshore entry persons making protection claims, who, for practical reasons, cannot be taken to a declared country, are detained at an excised offshore place while those claims are considered by DIMIA pursuant to the same process as it employs in declared countries.

Persons processed in declared countries or excised offshore places, who are found to have a treaty entitlement to protection, may be offered access to 'appropriate protection' by Australia 'should protection not be available in other countries' (DIMIA, 2002).

Given that these processing arrangements form part of a regime justified in part as being a means of keeping potential terrorists out of Australia, it is a pretty safe bet that, notwithstanding the absolute character of the CAT and (sometimes) the ICCPR protection obligations, those entitled to protection who are also suspected of having terrorist links will not be offered access to protection in Australia. It's also a pretty safe bet that no other country will be willing to offer protection to such persons either, making eventual refoulement a very real possibility.

mainland arrivals

Asylum seekers who manage to get themselves to mainland Australia without prior authorisation (probably arriving by air rather than sea) still have to overcome one more hurdle. Each unauthorised arrival undergoes an individual screening interview conducted by a DIMIA officer.

On the basis of a written summary of this interview, a senior DIMIA officer based in Canberra determines whether the person has made claims which, prima facie, may engage Australia's protection obligations under the Refugees Convention. If the answer is 'no', the person is removed from Australia as soon as practicable.

asio involvement

If the answer is 'yes', the person is supposedly allowed to remain and make a protection visa application. ASIO, which is responsible for making security assessments of asylum seekers, appears to become involved in the process from the initial screening interview (DIMIA, 2000).

According to a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade, the Director-General of ASIO informed that Committee that 'he was able to develop a security profile such that he would be able to determine in a boatload of refugees those who needed closer investigation and detailed investigation and those who were not a security risk.' (Price, 2002: 401).

Since the entire screening process is the opposite of transparent (see further, Taylor, 1999), it cannot be ruled out that asylum seekers in respect of whom there are security concerns will simply be 'screened out' and removed without ever being given an opportunity to make a protection visa application.

Australia's On-shore Protection Claim Determination Procedures

Both unauthorised arrivals who survive the screening process and persons who arrive in Australia on valid temporary visas and then invoke Australia's protection obligations are permitted to make protection visa applications. The basic criterion for the grant of a protection visa is that the applicant is 'a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol' or is the spouse or dependant of a protection visa holder (Migration Act, s36(2)).

public interest criterion

In order to be granted a protection visa an applicant must also undergo medical examinations and satisfy public interest criteria 4001, 4002 and 4003. Further, the Minister must be satisfied that the grant of the visa is in the national interest.

The public interest criterion of relevance to this article is public interest criterion 4002, which requires that the applicant 'is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.' [8] ASIO is the Australian authority with the competence to make the security assessments to which public interest criterion 4002 refers.

A protection visa decision is made by a DIMIA officer (acting as a delegate of the Minister for Immigration) in the first instance. However, in assessing whether public interest criterion 4002 is met the only question for the DIMIA officer is whether an adverse security assessment by ASIO exists in respect of the applicant.

If yes, the applicant cannot be found to satisfy public interest criterion 4002 (DIMIA, Procedures Advice Manual 3: Protection Visa Procedures Manual, 2003, para. 49.2). DIMIA also considers it appropriate to rely on ASIO security assessments in determining whether there are reasonable grounds for regarding an applicant as a danger to Australian national security so as to allow invocation of the article 33(2) exception to the Refugees Convention non-refoulement obligation (DIMIA, Procedures Advice Manual 3: Refugee Law Guidelines, 2003, para. 10.1.1).

rrt or aat review

In the usual case, a primary stage protection visa refusal is subject to merits review by the Refugee Review Tribunal (RRT). The RRT cannot, however, review a decision to refuse a protection visa relying on Article 1F or Article 33(2) of the Refugees Convention (Migration Act, s 500(4)).

The Administrative Appeals Tribunal (AAT) has been given jurisdiction to review decisions to refuse a protection visa relying on Articles 1F or 33(2) of the Refugees Convention (Migration Act, s 500(1)). [9] It has not, however, been given jurisdiction to review decisions relying on public interest criterion 4002 (Director General, Security v Sultan; Kaddari v Minister for Immigration and Multicultural Affairs).

Tamberlin J in Kaddari v Minister for Immigration and Multicultural Affairs expressed the view in obiter that the RRT would have jurisdiction to review a decision to refuse a protection visa on public interest criterion 4002 grounds. Any review obtained from the RRT would, however, be empty because the question for the RRT, as for the primary decision-maker, is simply whether an adverse security assessment by ASIO exists in respect of the applicant.

asio and disclosure

ASIO now interviews protection visa applicants prior to the issuance of adverse security assessments - an improvement on previous practice (IGIS, 1999-2000: para. 163). However, ASIO is not required to disclose adverse material to the applicant [10] or even provide a statement of grounds for an adverse assessment.

By contrast, the Australian Security Intelligence Organisation Act 1979 (Cth) provides in respect of ASIO's security assessments of persons who are Australian citizens (or belong to a limited category of non-citizens), [11] that, except in limited circumstances, an adverse security assessment must be accompanied by a statement of grounds which contains all the information relied upon by ASIO in making the assessment (ASIO Act 1979, s37(2) and s38(2)(b)).

It is also the case that independent merits review of adverse security assessments is not available to protection visa applicants. By contrast, merits review by the Security Appeals Division of the AAT of adverse security assessments is available to Australian citizens (AAT Act 1975, s39A).

The Inspector General of Intelligence and Security recommended to the Attorney-General that the government introduce legislation enabling protection visa applicants whose application would have been successful but for a adverse security assessment likewise to obtain independent merits review of that assessment (IGIS, 1998-99: para. 90). This recommendation was not implemented, apparently because the Minister for Immigration was not in favour of doing so for reasons not specified publicly (IGIS, 1999-2000: paras. 45-46).

ministerial discretion

The Migration Act does not give the DIMIA primary stage decision-maker, the RRT or the AAT the power to grant a protection visa to an applicant who does not meet the criteria for the grant of a protection visa. However, the Minister for Immigration has been given personal powers to substitute for a decision of the RRT (Migration Act, s417) or an 'AAT protection visa decision' (Migration Act, s501J) another more favourable decision.

These powers of intervention are exercisable in the public interest. They are significant because, by exercising them, the Minister is able to grant a protection visa applicant whatever visa the Minister thinks fit, even if the applicant does not satisfy the criteria specified in the regulations for the grant of a visa of that class. Ministerial guidelines relating to the exercise of the Minister's power of intervention under s417 and s501J of the Migration Act identify cases of non-citizens to whom Australia has protection obligations under the CAT and/or the ICCPR as cases in which it may be in the public interest to substitute a more favourable decision (Migration Series Instruction: Ministerial Guidelines for the Identification of Unique or Exceptional Cases, para 4.2.1).

minister and accountability

Requesting exercise of the Minister's s417 or s501J power, as the case may be, is the first and only opportunity asylum seekers in danger of exclusion have to put non-Refugees Convention protection claims to a decision-maker who actually has the ability to respond meaningfully to those claims. The Minister need not, however, consider the exercise of these powers and even if the Minister considers and then refuses to exercise the relevant power, the Minister cannot be made accountable for that decision.

On the other hand, if the Minister decides to substitute a more favourable decision pursuant to the s417 or s501J power, the Minister must table a statement in Parliament setting out reasons for so doing. Any rational political calculation will inevitably point towards never exercising the s417 or s501J power in favour of a person who might possibly be a security risk, regardless of any protection obligation Australia may owe the person. It is worth noting that, as at 21 August 2003 (the last day of the most recent sitting of Parliament), no statements reporting favourable exercise of the s501J power had ever been tabled. [12]

Conclusion

The threat to national security posed by a particular individual at a particular point in time can surely be no more or less by reason simply of his or her immigration and citizenship status. This means there can be no objective justification for according less procedural fairness to an asylum seeker who may pose a threat to national security than to a citizen who may pose a similar threat. It follows that neither the routine withholding of adverse material from asylum seekers by ASIO nor the present withholding from asylum seekers' of AAT review of adverse security assessments nor any other procedural disadvantage they suffer vis--vis citizens, who are in a similar position, ought to be countenanced by Australian society.

Likewise, if a particular asylum seeker is identified as being both a person to whom a protection obligation is owed and a person who may commit a terrorist act in the future, he or she should be treated no differently to an Australian citizen. Liberal democracies presently respond to the home-grown risk of terrorism by physically protecting important infrastructure and office holders, controlling access to dangerous materials and technologies, banning identified terrorist organisations and disrupting the flow of funds to them, gathering intelligence and monitoring the activities of citizens regarded as particular dangerous; they do not respond by removing potential citizen-terrorists from the country (or for that matter by subjecting them to indefinite preventative detention, which is the alternative sometimes suggested in the case of suspect asylum seekers).

If Australians wonder why violation of the human rights of non-citizens in the course of the 'war against terrorism' should be of any concern to them, consider this. During the First World War, Australia interned approximately 700 naturalised and 70 Australian-born British subjects of German ethnicity very often 'for no good reason' (Fischer, 1989: 77, 86-126). During the Second World War, Australia interned 947 naturalised and 62 Australian-born British subjects of Italian ethnicity because of 'attitudes which equated race with nationality and which regarded assimilation as a necessary precondition to citizenship' (O'Brien, 1992: 92-3). Now flash forward. The Australian Government describes the war against terrorism as 'a war against an enemy that is difficult to define and even harder to identify' (Williams, 2002). In this war more than any other, every inhabitant of Australia whether citizen or non-citizen is potentially the enemy. Already, and despite frequent assurances by political leaders that the 'war against terrorism' is not a war on Arabs or on Muslims, examples abound of Arabs and Muslims being treated as second-class citizens in Australia and other western countries. In the words of Thomas Paine:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself (Paine: 1953, 174).

Footnotes

[1] This article is based to a large extent on previous articles by the author, in particular, Taylor 2002a and Taylor 2002b.

[2] See Border Security Legislation Amendment Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth); Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth).

[3] Article 32 of the Refugees Convention allows state parties to expel refugees lawfully in their territory on grounds of national security or public order subject to certain procedural safeguards. However, this permission does not override the non-refoulement obligation.

[4] The refugee's wife lodged a complaint on his behalf with the UN Human Rights Committee claiming, among other things, that France had violated his right to freedom of movement under Article 12 of the ICCPR. The Human Rights Committee concluded that in light of all the circumstances there had been no violation of Article 12 (Karker v. France).

[5] The only ICCPR rights which are non-derogable under all circumstances are those contained in articles 6, 7, 8 (freedom from slavery), 11 (freedom from debtors' prison), 15 (freedom from sanction under retroactive criminal legislation), 16 (right to recognition as a person before the law) and 18 (right to freedom of thought, conscience and religion).

[6] Article 4 of ICCPR provides that ICCPR rights can be derogated from 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Not only must the public emergency meet the rigorous qualifications prescribed, but each specific measure in derogation of an ICCPR right must be shown to be the least oppressive means available for achieving the national security goal. Additionally, the public interest gain of implementing a measure must outweigh the cost to the affected individuals. This is known as the principle of proportionality.

[7] In late August 2001, 433 asylum seekers were rescued from a sinking boat by the Norwegian freighter Tampa. The Tampa headed for Christmas Island, but was informed by authorities that the rescued people would not be allowed to disembark there. The government eventually managed to resolve the ensuing standoff by making arrangements for 150 of the asylum seekers to have their claims considered in and by New Zealand and for the remainder to have their claims considered in Nauru by the United Nations High Commissioner for Refugees (UNHCR). The government's handling of the Tampa incident was well received by the Australian public.

[8] There is also scope for a person suspected of presenting a national security risk to be refused a protection visa in exercise of the character power (see further Taylor, 2002b).

[9] Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the AAT is able to affirm, vary, or set aside a decision and in the last case either remit the matter for reconsideration or substitute its own decision. If the primary decision-maker's refusal also relied upon the application to the facts of Article 1A or Article 33(1) of the Refugees Convention or some other ground not within the jurisdiction of the AAT, the AAT upon making a finding favourable to the applicant on those matters within its jurisdiction would have to remit the case to the primary decision-maker. The other grounds of review would then have to be taken to the RRT (Daher v Minister for Immigration and Ethnic Affairs).

[10] ASIO and the IGIS are exempt from the operation of the Freedom of Information Act 1982 (Cth) and other Commonwealth agencies are exempt from the operation of the Act 'in relation to a document that has originated with, or has been received from' ASIO or the IGIS (Freedom of Information Act, s7(2A), sch 2, pt 1).

[11] Section 37(2) does not apply to security assessments unless made in respect of a person who is an Australian citizen, an Australian permanent resident or a special purpose or special category visa holder (ASIO Act 1979, s36).

[12] As at 4 February 2003, the Minister had received only three requests for intervention under s501J (Ruddock, 2003: 10840). However, a new MSI provides that 'In all cases where a review authority affirms a decision on a protection visa application, an assessment against the Guidelines must be made. This is irrespective of whether or not a request has been made' (Migration Series Instruction: Minister's Public Interest Powers, para. 5.1.1).

References

Australian legislation

Administrative Appeals Tribunal Act 1975 (Cth).

Australian Security Intelligence Organisation Act 1979 (Cth)

Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth).

Border Security Legislation Amendment Act 2002 (Cth).

Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth).

Freedom of Information Act 1982 (Cth).

Migration Act 1958 (Cth).

Security Legislation Amendment (Terrorism) Act 2002 (Cth).

Suppression of the Financing of Terrorism Act 2002 (Cth).

Telecommunications Interception Legislation Amendment Act 2002 (Cth).

Australian cases

Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.

Director General, Security v Sultan (1998) 90 FCR 334.

Kaddari v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 597.

Australian policy documents

DIMIA, Migration Series Instruction [unnumbered]: Ministerial Guidelines for the Identification of Unique or Exceptional Cases where It May Be in the Public Interest to Substitute a More Favourable Decision under s 345, 351, 391, 417, 454 and 501J of the Migration Act 1958, [no issue date] available as attachment 9 to DIMIA, Submission to the Senate select Committee on Ministerial Discretion in Migration Matters, August 2003. NB This replaces MSI 225 issued 4 May 1999.

DIMIA, Migration Series Instruction [unnumbered]: Minister's Public Interest Powers, [no issue date] included as attachment 2 to DIMIA, Submission to the Senate select Committee on Ministerial Discretion in Migration Matters, August 2003.

DIMIA, Protection Visa Procedures Manual. Superseded version archived on LBC Immigration Service CD Rom Volume 3, Issue 10, issued January 2000.

DIMIA, Procedures Advice Manual 3: Protection Visa Procedures Manual available on LBC Immigration Service CDRom Volume 4, Issue 7, issued July 2003.

DIMIA, Procedures Advice Manual 3: Refugee Law Guidelines: A Guide for DIMIA Decision Makers available on LBC Immigration Service CDRom Volume 4, Issue 7, issued July 2003.

International Legal Material

Committee Against Torture, Report of the 25th Session and 26th Session, 26 October 2001.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, [1989] ATS 21. Entered into force generally on 26 June 1987 and for Australia on 7 September 1989.

Convention relating to the Status of Refugees, 28 July 1951, [1954] ATS 5. Entered into force for Australia and generally on 22 April 1954.

International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23. Entered into force generally on 23 March 1976 and for Australia on 13 November 1980.

Karker v. France Communication no. 833/1998 (26 October 2000).

Paez v. Sweden Communication no. 39/1996 (28 April 1997).

Protocol relating to the Status of Refugees, 31 January 1967, [1973] ATS 37. Entered into force generally on 4 October 1967 and for Australia on 13 December 1973.

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989, [1991] ATS 19. Entered into force for Australia and generally on 11 July 1991.

UN Security Council Resolution 1373 of 28 September 2001.

United Nations Charter http://www.un.org/aboutun/charter/index.html

Articles & Books

Atkins, Dennis

2001. PM Links Terror to Asylum Seekers. Herald Sun, 7 November.

Burke, Anthony

2001. In Fear of Security: Australia's Invasion Anxiety. Annadale, NSW: Pluto Press.

DIMIA

2002. Answer to Question 29 Taken on Notice, Additional Estimates Hearings 19 & 22 February 2002: Senate Legal and Constitutional Legislation Committee Examination of Additional Estimates 2001-2002 <cropped link here>

2000. Protecting the Border: Immigration Compliance. Ch. 1 <cropped link here>

Fischer, Gerhard

1989. Enemy Aliens: Internment and the Hom Front Experience in Australia 1914-1920. St Lucia, Qld: University of Queensland Press.

Forbes, Mark

2003. Australia let suspect go, say French, The Age, July 12.

IGIS

1998-99. Annual Report

1999-2000. Annual Report

Goodwin-Gill, Guy

1996. The Refugee in International Law. Second Edition. Oxford: Clarendon Press.

Illingworth, Robert (Assistant Secretary, Onshore Protection Branch, DIMIA)

2002a. Official Committee Hansard: Senate Legal and Constitutional References Committee Reference Migration Legislation Amendment (Further Border Protection Measures) Bill 2002. 6 August.

2002b. Committee Hansard: Senate Legal and Constitutional References Committee Reference Migration Legislation Amendment (Further Border Protection Measures) Bill 2002. 17 September.

Marr, David and Wilkinson, Marion

2003. Dark Victory: the Tampa and the Military Campaign to Re-elect the Prime Minister. Crow's Nest, NSW: Allen & Unwin.

O'Brien, Ilma Martinuzzi

1992. The Internment of Australian Born and Naturalised British Subjects of Italian Origin. War, Internment and Mass Migration: The Italo-Australian Experience 1940-1990. Ed. Richard Bosworth and Romano Ugolini. Roma: Gruppo editoriale internazionale. 89.

Paine, Thomas (1737-1809)

1953. Dissertation on First Principles of Government. Common Sense and Other Political Writings. Ed. Nelson Adkins. New York: Liberal Arts Press. 155.

Price, Roger

2002. Parliamentary Debates, House of Representatives Official Hansard, 18 February <cropped link here>

Ruddock, Philip (Minister for Immigration)

2003. Parliamentary Debates, House of Representatives Official Hansard, 4 February <cropped link here>

2002. Border Protection People Smuggling - Australia's Experience And Policy Responses - A Background Paper, revised 22 July <cropped link here>

Seccombe, Mike

2001. Politics of Fear Works Well for PM. Sydney Morning Herald, 19 September 2001.

SLCRC (Senate Legal and Constitutional References Committee).

2002. Migration Zone Excision: An examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and related matters. <cropped link here>

Taylor, Savitri

2002a. Reconciling Australia's International Protection Obligations with the "War on Terrorism" Pacifica Review: Peace, Security and Global Change 14(2): 121-140.

2002b. Guarding the Enemy from Oppression: Asylum Seeker Rights Post-September 11. Melbourne University Law Review (Symposium: Contemporary Human Rights in Australia). 26(2): 396-421.

1999. Rethinking Australia's Practice of "Turning Around" Unauthorised Arrivals: The Case for Good Faith Implementation of Australia's Protection Obligations. Pacifica Review: Peace, Security and Global Change. 11(1): 43-61.

Williams, Daryl

2002. Opening Address. Paper presented at Globalising Terror, Political Violence in the New Millennium Conference. Hobart, 8 May.

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