ASIO's secrecy forces clients to fight blindfolded - National - theage.com.au

Lawyers says ASIO is muscling in on litigants' right to an open trial, writes Liz Porter.

ONE morning last year a Melbourne lawyer opened a large and eagerly awaited bundle of government documents - and found almost every useful detail blacked out.

He had recently begun fighting a case for an Australian citizen whose passport had been cancelled following an adverse ASIO assessment.

The man, son of an Irish mother and a Pakistani father, had studied in the Middle East and had been questioned by ASIO on his return. As a citizen, he was entitled under the Administrative Appeals Tribunal Act to get all government documents relevant to the case. He assumed that the reasons for the adverse assessment would be contained somewhere within them.

But a certificate from the Attorney-General, delivered with the documents, brought even worse news. The certificate imposed huge restrictions on what the lawyer could know about the case he was supposed to be running.

When the case finally made it to a tribunal hearing, he felt he would be fighting blindfolded - and with both hands tied behind his back. On grounds of the "national interest", the certificate barred both lawyer and client from either hearing the government's evidence or from being in the courtroom when it was being presented.

But the lawyer wasn't shocked. He is a veteran of court battles with ASIO. For him, facing a pile of blacked-out documents was just another Kafkaesque moment of many.

Anne Gooley of Maurice Blackburn Cashman has also had plenty of "Kafka" moments in court. For the past two years she has been fighting a Federal Court battle for the right to see documents used by ASIO to make adverse assessments against three of her clients: US peace activist and school teacher Scott Parkin and two former Nauru-based Iraqi refugees, Mohammed Sagar and Muhammad Faisal. In Parkin's case, the assessment meant the cancellation of his visa and his deportation. For the Iraqis, it meant being marooned on Nauru with no chance of resettlement in Australia.

In one Alice in Wonderland courtroom scene, lawyers for ASIO argued that because Mr Parkin, Mr Sagar and Mr Faisal said they did not know the basis of the security assessment, they were just on a "fishing expedition designed to show there was no evidence to support the security assessment". Therefore, the ASIO lawyers argued, Ms Gooley's clients had no right to ask for information. The anti-"fishing" rule exists, in conventional cases, to stop litigants undertaking speculative "fishing expeditions" to find something that will give them a case against an opponent.

This week, Ms Gooley was preparing for next month's Federal Court hearing in the case known as Parkin versus O'Sullivan - a case that began late in 2005 after Mr Parkin, Mr Faisal and Mr Sagar were suddenly given notice of their "adverse assessments" by ASIO Director-General of Security Paul O' Sullivan.

All three cases, Ms Gooley says, are puzzling. Mr Parkin, for example, had been arrested once in the US at a Greenpeace protest, but the charges were withdrawn and he was granted a visa to enter Australia as a visitor. But in September 2005, ASIO suddenly advised immigration authorities that he was a security threat. He was then incarcerated and deported.

Mohammed Sagar and Muhammad Faisal arrived in Nauru in 2002 and were eventually accepted as refugees. But in August 2005 they were informed that ASIO had made "adverse security assessments" of them, making them ineligible for protection visas.

Legal action to force ASIO to disclose the reasons for its assessments was under way when Mr Faisal cracked under the strain of detention and was medically evacuated to Brisbane.

He was subsequently reassessed by ASIO, found not to be a security risk and given a five-year "humanitarian" visa.

"Why did they change their mind?" asked Ms Gooley. "They won't tell us." In the meantime, Mr Sagar was accepted for settlement by Swedish authorities.

In November last year, Federal Court Justice Ross Sundberg ruled that Mr Parkin and the two Iraqis were entitled to be given a list of the documents relied upon by ASIO to make their assessments. The Government was then given leave to appeal against that judgement. At next month's hearing the two sides will be debating what orders for "discovery" of documents Justice Sundberg should make. ASIO will appeal. The case, lawyers say, will be before the court two years' hence.

"This litigation has been on foot for just on two years and we have progressed almost nowhere," Ms Gooley said. "It will be at least another year or so before we get to see any documents and another year after that before we get a trial." The right to know what you are alleged to have done "is a fundamental principle of the rule of law", Ms Gooley said. "My clients' basic rights have been ignored in the name of national security."

Attorney-General Philip Ruddock said: "ASIO cannot disclose details of security assessments as it may reveal sources or methodologies and compromise ongoing operations."