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Court in the Act
23 July, 2008  
The spell of the spooks

In two different cases the full Federal Court has dealt with ASIO and its obsession with secrecy in markedly different ways. One bench virtually rolled over to be tickled on the tummy by the chief spook. The other one stood its ground and said the court was not going to be a patsy for the state apparatus


imageOn July 15, one bench of the Full Federal Court upheld an AAT decision saying the applicant can’t have access to his adverse ASIO assessment.

On July 18, another full bench of the Federal Court was a bit bolder, allowing the respondents access to a list of ASIO documents relevant to their cases.

What a spooky world it is.

Weinberg, Bennett and Edmonds told the applicant in Hussain v Minister for Foreign Affairs and the Director General of ASIO that his ASIO assessment was off limits.

The then attorney general (Fabulous) Phil Ruddock said so. As far as the federal judges were concerned that was the end of the story, because Phil was responsible for keeping us safe from terrorists.

However, Ryan, North and Jessup in Paul O’Sullivan as DG of ASIO v Parkin, Sagar and Faisal gave the impression they were not so overawed by the need for oppressive secrecy and said the respondents were entitled to discover a list of ASIO documents.

imageJulian Burnside (pic) and Laurence Maher appeared for the parties who had been hexed by ASIO in both cases.

Hussain was an appeal from an AAT security appeals division decision affirming the minister’s decision to cancel an Australian citizen’s passport on the basis of a bad security assessment.

The AAT panel in Hussain was presided over by the tribunal’s president and Federal Court judge, Justice Downes.

The appeal involved consideration of the attorney general’s magic certificate, which closed most of the proceedings and denied the applicant and his lawyers access to relevant information held by ASIO.

In Parkin, Sagar and Faisal the DG of ASIO appealed against a decision of a single judge of the Federal Court for access to lists of ASIO documents that are relevant to their cases.

The difference was one of approach.

The Hussain bench failed adequately to test the government and ASIO’s submissions, and even accepted without discussion that the spooks had slipped in an affidavit after the proceedings were closed, without telling the applicant.

The judges came up with a feeble consideration of the applicant’s argument that these security cases are incompatible with the integrity of the federal bench, which is being co-opted to legitimise administrative and political decisions.

And this is in a case where a citizen is denied the liberty of travel.

In fashioning the incompatibility doctrine the applicant drew on the High Court’s twitchiness about how Chapter III judges are being used for extra-judicial “special projects”.

On the other hand in Parkin and ors Ryan, North and Jessup weren’t copping any of the usual ASIO guff. Far from the court being an instrument of the security apparatus, it applied its own measure of the “interests of justice”.

And why wouldn’t judges be skeptical of the conduct of our spies after Justice Michael Adams’ unchallenged findings in R v Ul-Haque that ASIO indulged in a spot of kidnapping and perjury?

The spooks have fought these cases tooth and nail, insisting that their assessments remain secret, even if it means that the ministerial decisions to cancel passports or deny visas based on these assessments cannot be effectively challenged.

imageRyan, North and Jessup upheld Justice Ross Sundberg’s findings of last November.

Parkin (pic), a US citizen, came to Australia on a tourist visa in June 2005 and was kicked out of the country before his visa expired after ASIO put the mark of Cain on him. Wikipedia describes Parkin as a “peace, environmental and global justice organiser”.

His adverse security assessment may have something to do with the fact that he participated in an anti-war demonstration outside the Sydney headquarters of the Halliburton subsidiary KBR, as well as attending a demonstration at the Forbes Global CEO Conference.

He was detained in prison in Australia pending his deportation and then billed $11,700 for the flight back to the US with two government escorts.

Needless to say Ruddock was the attorney general at the time and Amanda Vanstone the Minister for Immigration.

Both Sagar and Faisal fled Iraq as refugees and in September 2002 were handed over to Nauru as part of the Australian government’s “Pacific Solution”.

Three years after they were sent to the guano infested outcrop the Department of Immigration said they both were entitled to refugee status. ASIO subsequently came up with adverse security assessments and as a result they were refused visas to enter Australia.

In the intervening years, and after the commencement of these proceedings, events seem to have progressed.

Sagar was not regarded as a risk to Sweden’s national security and so he settled in that country. As for Faisal, mysteriously he was given a new security assessment by ASIO and permitted to enter Australia as a permanent resident.

Of course, we’re not allowed to know the reason for this change of heart, which makes the determined battle by the spooks to keep the first assessment secret all the more fascinating.

The full Federal Court in the Parkin, Sagar and Faisal case said Sundberg’s original decision was correct: the applications for discovery of the security assessments were not fishing expeditions; that there was no error in ordering discovery in a case where national security is involved; and that despite the provisions of the ASIO Act that prevent the release of security assessments, a judge can still order their release “if the justice of the case otherwise requires it”.

Sundberg said in his reasons:

“The submission that discovery would circumvent the ASIO Act and therefore constitute an abuse of process must fail.”

imageOn appeal the DG of ASIO, Paul O’Sullivan (pic) said that in expressing himself in that way the judge failed to deal with the essence of the point raised by the director general, namely that the regime of the Act prevented non-citizens accessing adverse security assessments.

The full court said this was “too fine and too pedantic a distinction” in the way the judge expressed himself.

“This is the very kind of appellate objection which should not be entertained in a situation involving the exercise of a discretion on a matter of practice and procedure.”

In any event, in the next round of the proceedings that challenges the cancellation of Parkin’s visa, the attorney general may still issue a certificate which places an unchallengeable cone of silence and secrecy around anything that ASIO has done.

Unlike the tightly buttoned down reasons in Parkin, Weinberg, Bennett and Edmonds in the Hussain decision strayed into the province of exciting value judgments, such as:

“It should not be forgotten that the attorney general, as the first law officer of the Commonwealth, is charged with the vital task of protecting the community from the threat of terrorism, and that much of the information relevant to that task will be highly confidential.”

That must have forgotten that FLOC, at least in Ruddock’s time, used the threat of terror largely for the political purpose of terrorising the electorate.

imageUnder the Administrative Appeals Tribunal Act, in security cases, applicants and their lawyers are refused access to security assessments; hearings are held in secret with the exclusion of applicants’ lawyers; and even if applicants have a complete answer to ASIO’s assessment that can never be heard.

Curiously, Weinberg, Bennett (pic) and Edmonds said they doubted that “ordinary members of the community” would regard federal judges who presided over this sort of regime as having “compromised their integrity”.

When The Sydney Morning Herald ran that quote there was flood of angry emails from “ordinary members of the community” in strong disagreement.

At least solicitor general David Bennett (Annabelle’s other half) would be unlikely to conjure submissions in disagreement with the Hussain judgment.

After all, when discussing the restriction of people’s freedoms by use of control orders he told the Australian Legal Convention last year that those who disagreed who with the state’s capacity to restrain people in this way were “luddites” and “very September 10”.

You get the vibe.