Opinion

David Marr
ASIO’s indefinite detention beyond reason or doubt

Sayed Jaffarie is not a refugee. He did not come by boat. He is not accused of terrorism in any shape or form. At the age of 21 he flew here from Pakistan to join his wife, an Australian citizen. Some time after the arrival of this young Hazara in 2008 he opened a shop in the western suburbs of Sydney and if ASIO is right – who can tell – he began “facilitating and providing support for people-smuggling activities.”

People-smuggling is a crime. The sentence is hefty. Smugglers used to be pursued by the Australian Federal Police and the courts. ASIO was never much worried about the trade. When politicians muttered darkly about terrorists arriving by boat disguised as asylum seekers, they had no support from the nation’s intelligence agencies.

John Howard was rebuked by then director-general of ASIO, Dennis Richardson, when he ran that line. Richardson said the chance of terrorists being funnelled into Australia on the boats was extremely remote. “Why would people use the asylum seeker stream when they know they will be subject to mandatory detention?” he asked. “They don’t know if they will be allowed entry and may be thrown out.”

But when the boats – and the panic about the boats – returned in Kevin Rudd’s time, ASIO was dealt into the game. A few ex-Tamil Tigers were turning up among the asylum seekers, but the real point of enlisting ASIO was not a heightened security threat. Canberra wanted to use ASIO’s powers of investigation and surveillance against the smuggling syndicates.

“People-smugglers are the vilest form of human life,” Rudd famously declared. “They trade on the tragedy of others, and that is why they should rot in jail and, in my own view, rot in hell.”

ASIO Act

All that changed at this point was the language of the ASIO Act where “security” had the traditional meaning of protecting the Commonwealth from espionage, sabotage, politically motivated violence, etc. In May 2010 the word was given an extra meaning: “The protection of Australia’s territorial and border integrity from serious threats.”

ASIO always had whatever power it needed to deal with security issues raised by people-smuggling. Tinkering with the definition of “security” was proof in its way that the risks posed by the trade were unchanged and low. The explanatory memorandum that came with Rudd’s legislation did not claim any sudden new security dangers. The point of the amendment was to “enable ASIO to use its existing intelligence collection and analysis capabilities in relation to whole-of-government efforts to combat people-smuggling.”

Four months after the law changed, the Department of Immigration referred Jaffarie’s case to ASIO. Police were also involved. The Granville shopkeeper was under surveillance for two years. His phones were tapped under warrant. ASIO came to believe that he was “a key Australia-based member of the Sayed Abbas maritime people-smuggling syndicate.”

Abbas was the face of people-smuggling at this time. He was in and out of prison in Indonesia as Canberra tried and failed to have him extradited to face charges in Australia. When Jaffarie was called in by ASIO for an interview in October 2012, he denied any knowledge of Abbas or role in people-smuggling. An ASIO document that finally emerged before the court had Jaffarie saying: “I swear I don’t have any idea about that.”

Jaffarie’s position remains the same today: absolute denial of any involvement with Abbas or people-smuggling.

ASIO delivered its verdict to the immigration department in June last year in a document called a Final Appreciation. It remains secret. The three judges who sat on Jaffarie’s case have read it. He and his lawyers have not. His visa was cancelled and on June 19 he was taken into detention where he remains.

He was not charged. His fate was to be decided not by facts tested in a court but the say-so of ASIO. In late August he was given a brief document that accused him of involvement in people-smuggling, association with people in that trade and giving “false and misleading information”. ASIO concluded that he was “directly or indirectly a risk to Australia’s security”.

No names, no facts, no evidence of any kind was set out in this 250-word document. These were ASIO’s conclusions scrubbed of any detail. It was all that was provided to allow Jaffarie to make submissions in his own defence.

Six weeks later, represented by the president of the NSW Council for Civil Liberties Stephen Blanks, Jaffarie was in the High Court seeking a review of ASIO’s role in his predicament. The case was remitted to three judges of the full Federal Court, Geoffrey Flick, Nye Perram and Richard White.

High Court assesses ASIO's role

They couldn’t assess the merits of the case against Jaffarie. The Migration Act locks them out of that. They couldn’t decide if people-smuggling itself is a threat to the security of the nation. The ASIO Act settles that by definition. And they wouldn’t let Jaffarie see the case against because they considered the Final Appreciation too confidential to show the man it condemned.

What they could do was assess the legality of ASIO’s role. Jaffarie didn’t have much to go on but he could ask one key question: did his supposed part in the people-smuggling trade amount to a “serious” threat to the “territorial and border integrity” of the nation as defined in the ASIO Act?

ASIO knew it had to give the court better reasons than it gave Jaffarie. That meant an unprecedented appearance in the witness box by the director-general David Irvine and the release of a heavily redacted version of the Final Appreciation that had decided Jaffarie’s fate.

Irvine gave nothing away. Facts remained sparse. The names of the agencies that worked with ASIO were suppressed. No evidence at all was presented. No agents were cross-examined. There were no transcripts of telephone taps. All the court had was the redacted Final Appreciation that named Abbas for the first time and accused Jaffarie of being a “prominent member” of his “extensive Indonesia-based people-smuggling syndicate” with a “significant monetary incentive” to stay in the trade.

The judges put up no fight. The adjectives did their work. In their unanimous decision handed down this week, they found those words showed ASIO wasn’t simply asserting that smuggling was always a “serious threat” to our borders. Here was something more: a syndicate that was extensive and a local operator who was prominent. That was “serious” enough. Harm to the nation didn’t even have to be asserted.

And they didn’t defend their patch. The constitution says only the courts can punish. But it appeared Jaffarie was being punished by ASIO. The adverse findings against him led to loss of his visa, detention and threat of deportation. How could all this be inflicted on him without judicial oversight?

Punishment or administration?

That highly technical question hovers over the battles all governments have fought for the last 25 years to beat the boats. Mandatory detention is punishment. So is exile to Manus and Nauru. Both are designed to deter. How can such punishment be inflicted under our constitution other than by the courts?

Here the courts have shown an utter lack of courage. Time and again, judges have declared detention to be permissible because it is merely administrative. In their Manichean world, detention is either one or the other. They’ve never faced the obvious fact that it’s both.

The judges in Jaffarie’s case endorsed both his detention and ASIO’s role in putting him there. They argued that ASIO wasn’t usurping the functions of a court because nothing automatic flowed from its assessment. The Final Appreciation went to the Minister of Immigration who then had a choice: he might or might not detain Jaffarie; and he might or might not deport him.

Nothing judicial about that, said the court. And deportation is not punishment either. It’s a “right to regulate immigration”.

Flick, Perram and White JJ, had but one mild criticism to make of ASIO: it might have told Jaffarie more and sooner. “It is regrettable,” the judges said, “that the information which was ultimately disclosed to Mr Jaffarie was not disclosed at the outset.” Even so, they found nothing wanting here in the way of procedural fairness. They accepted at face values ASIO’s assertion: “Regard [h]as been given to the requirements of procedural fairness and any relevant legislative test.”

After the Federal Court decision this week, here is how things stand: ASIO will continue to investigate cases once handled by the police and the courts. The security body’s role does not depend on any evidence of actual security threats to the nation. The information collected in these operations will remain hidden and untested. And when it says it’s done everything by the book, ASIO will be taken at its word by the courts.

Jaffarie sits in Villawood. He cannot be deported to Pakistan. He claims his life would be at risk if he were sent to Afghanistan, the country his family fled when he was a child. Had he been charged under the Migration Act with the aggravated offence of people-smuggling he faced a maximum sentence of 20 years. As it is, he faces the possibility of detention for life. He is taking his case back to the High Court.

This article was first published in the print edition of The Saturday Paper on Aug 23, 2014 as "Beyond reason or doubt". Subscribe here.

David Marr
is a reporter, commentator and biographer.