CCPR/C/116/D/2233/2013
(c)
Potentially providing individuals or terrorist organizations with a safe haven
from which to engage in terrorist activities and terrorist financing within Australia.
6.5
Providing people with the classified details underpinning adverse assessments would
undermine the security assessment process and compromise the security of Australia. It
would also put sources of the Australian Security Intelligence Organisation at risk and
erode the capabilities on which the Organisation relies to fulfil its responsibilities. The
detention of the authors is a proportionate response to the security risk they have been
individually found to pose.
6.6
The lawfulness of decisions made under the Australian Security Intelligence
Organisation Act is subject to judicial review. In addition, the Inspector-General of
Intelligence and Security may inquire into the legality, propriety, effectiveness and
appropriateness of the Organisation in its work relating to the security assessment of noncitizens. Finally, the authors have access to the annual periodic review of their adverse
security assessments by the Independent Reviewer.
Article 9 (2)
6.7
If the Committee concludes that the authors were “arrested” for the purposes of
article 9 (2), the State party submits that this provision has not been breached. As is the
usual practice, all authors arriving at Christmas Island were provided with a detailed
explanation of the reasons for their detention, as set out in a detention notice written in
English. The text of the notice was read out by a government official with the assistance of
interpreters from the relevant language groups.
Article 9 (4)
6.8
As set out above, the authors have access to judicial review of the legality of their
detention, and a court may order their release if the detention does not comply with the law.
In Al-Kateb v. Godwin, the High Court of Australia held that indefinite administrative
immigration detention is within the power of the Parliament when it is for the purposes of
assessing claims of non-citizens to remain in Australia and for the purposes of effecting
their removal if they have no lawful right to remain, even where their removal is not
reasonably foreseeable. The requirement in the Migration Act to remove unlawful noncitizens as soon as reasonably practicable was held not to imply a time limit on detention.
Furthermore, the High Court is currently considering a case [S138 Case] which directly
challenges the lawfulness of detention.
6.9
The State party rejects the authors’ allegation that the law expressly prohibits from
being brought in the courts proceedings relating to the status of a person as an offshore
entry person, or the lawfulness of the detention of an offshore entry person. Although
section 494AA of the Migration Act sets a bar on certain legal proceedings relating to
offshore entry persons, the section specifically indicates that the provision does not affect
the constitutional jurisdiction of the High Court.
6.10 Judicial review of adverse security assessments provides an important opportunity
for courts to consider the release of information by the Australian Security Intelligence
Organisation to affected individuals. As part of the judicial review of adverse security
assessments, a party to a proceeding may seek access to any information, subject to
relevance and to a successful claim for public interest immunity.
Articles 7 and 10 (1)
6.11 Should the Committee believe that the authors have provided enough information to
permit a consideration of the merits of their claims under articles 7 and 10 (1), the State
party submits that the allegations are without merit. First, the system of immigration
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