Australia’s domestic spy agency sought to suppress parts of a document which it was argued forms part of Australian law – and would therefore usually be available to the public – to fight a legal challenge to a security assessment it made.
Evidence has also emerged in the case of junior officers allegedly making “embellishments” in a security report to the director general, Duncan Lewis.
Court documents reveal the extraordinary lengths the Australian Security Intelligence Organisation (Asio) has gone to to fight a judicial review of an adverse security assessment of a man currently held in immigration detention.
The man, who cannot be named for legal reasons, is challenging his security assessment in the federal court, in part, because he alleges the Asio officers who interviewed him embellished facts in a report to the director general. He also claims they attributed comments to him that he did not make.
Asio makes its security assessments based on a document containing a determination from the agency’s director general in July 2010, which was made under a section of the Asio Act.
The man’s legal team has argued that the determination should be considered a “legislative instrument,” which essentially would render it part of Australian law.
But at an early stage of the proceedings Asio sought what a “public interest immunity claim” over the document to redact parts of the instrument – effectively seeking to suppress it.
A cost order dealing with the decision made in March confirmed that the Asio director general had “resisted production of the redacted parts of the determination on the ground of public interest immunity.”
Asio withdrew the public interest immunity claim shortly before the hearing, but the decision was recorded in open proceedings.
The man had three interviews with junior Asio officers, who then provided the director general with a briefing that formed the basis of the decision to issue the adverse assessment.
The barrister representing the man, Tom Brennan, told a federal court hearing before judge Brigitte Markovic on Tuesday that this briefing contained “quite false statements” of what had occurred in the interview. He said it contained allegations surrounding the man’s affiliation, that he “adhered to Shia Islam” and his alleged association with a man named “Ishmael” who was associated with al-Qaeda in Iraq.
“The balance of the case is that junior officers of Asio conducted a series of three interviews with the applicant, and the results of that were reported to the director general and made a decision,” Brennan said.
“What was said in the interviews was embellished in material ways. The rather interesting legal questions that arise is what’s the consequence of those embellishments.”
The failure of the Asio officers to put the allegations to the man, which he says are false, was a denial of procedural fairness according to Brennan.
“Each of the embellishments in this case were ... a denial of procedural fairness.”
Asio’s counsel rejected the man’s arguments, in part because there may be separate evidence that could not be brought before the court on the basis of public interest immunity claims over other documents that were conceded by the man.
Cases seeking to challenge adverse Asio security assessments of non-citizens are notoriously difficult because there are limited requirements for them to be given reasons for the decision. This also limits the grounds on which a challenge could be made. Asio’s counsel drew the analogy of not having all the puzzle pieces, and said: “You don’t even really know how big the puzzle is.”
“We say that invitation being made ... is entirely inconsistent with how the law has developed … about the limits of judicial review of an adverse security assessment,” he said.
“An applicant in the position of the applicant here confronts a very substantial hurdle in seeking judicial review. It’s not a hurdle that can be cleared in the way that my friend is seeking to have here.”
He added that there was sufficient grounds in the questioning of Asio’s officers, and that the apparent embellishments in the summarised statement didn’t form a basis for judicial review.
“In each embellishment there is actually some foundation for the conclusion that was being reached.”
He pointed to footnotes that indicated there were other materials beyond those relied on to support each conclusion outside of the security interview itself.
He continued: “All it’s possible to do is read that the disclosed material doesn’t support the conclusion.”
The case is likely to see the release of the security assessment policy document for the first time, and will raise concerns that key instruments that could affect Australians legal rights are being withheld by the intelligence agency. There appear to be only two sets of regulations currently in force under the Asio Act.
Asio’s lawyers had previously submitted that the determination was an “administrative instrument” during the public interest immunity claim – rather than a legislative one – which would have potentially permitted their public interest claim that it should not be released.
Their lawyer said in the hearing that there was a “a considerable difficult with the argument that the determination was law”, but acknowledged the matters set out in the determination needed to be taken into account for the purposes of making security assessments.
If it were a legislative instrument then it should have been registered by the federal parliament. This process also could have allowed parliamentary scrutiny of the instrument, because the Senate can move to disallow some types of instruments.
Markovic reserved her decision until a later date.
