The Conversation recently published an op-ed of mine about proven refugees being detained indefinitely after receiving adverse security assessments from ASIO. It was kindly republished by the human rights volunteer organisation Right Now.

That article focused on the unjust nature of indefinite detention, the denial of a right to appeal, and the weakness of the national security arguments used to justify it. This post looks at another aspect: a common misunderstanding of ASIO’s role.

For those new to the story, the basic issue is that around 48 people, found to be refugees, are being detained indefinitely thanks to decisions made in a closed, non-reviewable process. This is largely unprecedented in Australia, and has led to at least one suicide, many attempted suicides, and has torn families apart. New reports on Lateline have helped the story gain momentum, leading to a spate of recent articles, but there is no sign of impending change.

This reprehensible situation resulted from decisions made by past Australian governments, and the unwillingness of the current government to change it. However, there is a tendency in some accounts to place the blame chiefly on ASIO, and to see these detentions as evidence of an intelligence agency out of control.

For example, following Director-General David Irvine’s testimony to the Joint Select Committee on Australia’s Immigration Detention Network, the President of the NSW Council for Civil Liberties described him as anti-democratic. Similarly, former Commonwealth Ombudsman Allan Asher likened Irvine to J. Edgar Hoover. The Refugee Action Coalition held protests against Irvine when he made a speech at the Sydney Institute. Anecdotally, there is a general impression around that ASIO is responsible for this situation.

This outrage at ASIO is misplaced, for the following reasons:

1. The Department of Immigration and Citizenship (DIAC), not ASIO, is detaining the refugees. ASIO can only detain people by using its counter-terrorism questioning powers, and only for very short periods. According to the annual reports to Parliament, it has only used its questioning powers once in the past six years.
2. ASIO does not decide that they should be detained. It decides whether a person passes a security assessment, but the subsequent visa denial and detention results from the Immigration Act and is implemented by DIAC. An exception here is that ASIO may advise DIAC that someone should remain detained while they are conducting the assessment, but once the assessment is made, ASIO has no say in what happens to them.
3. The lack of an appeals process does not result from any ASIO decision, but from Section 36 the 1979 ASIO Act, which denies most non-citizens the right to appeal an adverse assessment. This section should be amended, as recommended by the Joint Select Committee, but not yet responded to by Attorney-General Nicola Roxon.
4. ASIO is not advocating against an appeals mechanism. When testifying before the Joint Select Committee, David Irvine neither supported nor opposed an appeals process, he simply argued that the law would need to change first and that ASIO would abide by the law.
5. While Irvine did stress that any appeals process should maintain the secrecy of the assessment methods, that is not in itself an anti-democratic notion. It is also the current practice when security assessments of Australian citizens are appealed.

This means the responsibility for this does not lie with ASIO (or DIAC) but with the legislation, and therefore our elected leaders. The key Ministers able, but not yet willing, to do something about this are Nicola Roxon and Immigration Minister Chris Bowen. Ultimately, blame lies with the government as a whole for not yet acting, and the Coalition for outright opposing the Joint Select Committee’s recommendations to end indefinite detention. Blaming ASIO misses the point, because it is not capable of changing the law, and nor should it be. In a democracy, an intelligence agency has no business challenging the legislation that governs it.

Another problem with focusing on ASIO is that defenders of the current policy, particularly Chris Bowen and Shadow Immigration Minister Scott Morrison, are spuriously framing the issue as a dichotomy between security and softness. Attacking ASIO for maintaining the secrecy of its methods plays into that false dichotomy. It’s also unnecessary, as change can be made without making ASIO intelligence or assessment methods public.

This is not to shield ASIO from criticism. It can be legitimately criticised for many things: bungling the Jack Roche case, mistreating Izhar ul-Haque, neglectful behaviour during Mamdouh Habib’s rendition, and more if we look back to the early Cold War period. However, on this issue ASIO is simply following the law, which makes David Irvine the opposite of J. Edgar Hoover.

The problem is that the laws, as currently written, are producing unjust results. Changing this requires pressure on our elected leaders and the opposition, not making a bogeyman of ASIO.

Nicola Roxon’s recent announcement, proposing changes to intelligence agency laws, presents an opportunity. Journalists should ask her why – despite the recommendations of the Joint Select Committee on Australia’s Immigration Detention Network and the clear humanitarian urgency – the proposals do not include an appeals process for refugees’ security assessments.

Update 1: Listening to Triple J’s Hack, I realised this bit in point 2 might be wrong: “the subsequent visa denial and detention results from the Immigration Act”. While the visa denial might be required by law, the detention may not be.

As far as I can tell, the visa denial results from section 202 of the Migration Act 1958, which requires deportation of those who fail security assessments, as well as Public Interest Criterion 4002 of the Migration Regulations 1994.

According to Hack, the Migration Act does not require their detention, which suggests they could be released without passing new legislation (though they would still be in a legal limbo).

Also, page 166 of the Joint Select Committee on Australia’s Immigration Detention Network report gives an example of refugee family in 2002 who failed an ASIO assessment but DIAC chose not to keep them detained. The report states this might have been simply because they arrived by plane rather than boat.