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Australian Immigration Law Update 142

In this issue

Citizenship bill ramifications need reflection

Senior Liberal MP Philip Ruddock is “anxious” that his government’s push to strip some dual nationals of their citizenship appears to capture people who graffiti public property.

At a parliamentary hearing, Department of Immigration and Border Protection chief Michael Pezzullo was grilled over the controversial bill, which would revoke the citizenship of Australians who engage in terrorism, fight for an overseas terrorist organisation or are convicted of a terrorist offence.

A literal reading of the Bill implies that a conviction for intentionally damaging or destroying Commonwealth property would also be grounds for stripping citizenship. 

Mr Ruddock, the longest serving lower house MP, said he had “been anxious” about those provisions, and particularly whether graffiti convictions “could lead to citizenship revocation” unless the immigration Minister decided to intervene.

Mr Pezzullo said if graffiti were captured, the offence would have to relate to the “rupturing of your allegiance to Australia”.

There has been criticism that the Citizenship Bill, part of the Abbott governments’ tough national security agenda, was rushed and its ramifications not properly considered.

Mr Pezzullo said a “common-sense view” indicated graffiti offences should not be captured by the laws. He said the committee may wish to consider “potential rectification” on how the bill relates to property damage.

He said the disputed provision related to “a visible, symbolic terrorising or terror-inducing attack, say, on the Parliament, or other buildings of symbolic significance”.

As Fairfax Media reported in June, Gareth Smith, 72, a dual Australian-British citizen, feared he may be caught by the laws.

A self-confessed “serial-protester” from Byron Bay, Mr Smith was convicted in 2000 of damaging Commonwealth property after he spray-painted “Shame Australia!! Shame!” in hot pink across the front of Parliament House, Canberra, as part of a protest about East Timor.

Labor frontbencher Mark Dreyfus said that since 1990, there had been about 430 prosecutions brought for intentionally damaging or destroying Commonwealth property.

These included someone who destroyed documents to avoid prosecution for tax fraud.

The committee has been asked to consider if the laws should apply to past convictions. It may also scrutinise whether offences should be removed or new ones added.

Earlier at the hearing, Australian Human Rights Commission president Gillian Triggs estimated the Bill would affect millions of Australians who were dual citizens.

She said the Bill did not appear to “be focussed on egregious acts of terrorism, [and] is unnecessarily broad and vague… with no proper process”.

Refugee Council of Australia policy co-ordinator Lucy Morgan said a person could “unjustly lose their citizenship” if they were suspected but not convicted of a terror-related offence.

Liberal senator David Bushby disputed this, saying the Immigration Minister was unlikely to issue notices revoking the citizenship of people who were “innocent” or suspected of a “minor transgression” under the Bill.

Sydney Morning Herald – Nicole Hasham, Jane Lee – 6 August 2015

Citizenship Laws

When the government proposes legislative measures to remove citizenship from Australians, it requires the Parliament to wrestle with some fundamental legal principles on which our democracy is founded.

The Federal Government has introduced three new provisions, which would strip dual nationals or citizens who engage in terrorist activity of their Australian citizenship. These provisions would be automatically triggered when a person either engages in prescribed terrorist-related conduct, serves or fights for a declared terrorist organisation, or if they are convicted of a specified terrorism offence as prescribed in the Criminal Code.

The Law Council of Australia has serious concerns with this legislation, and these concerns have been noted in a detailed submission recently provided to the Parliamentary Joint Committee on Intelligence and Security.

The Law Council recognises the legitimate objective of addressing terrorism and providing consequences for citizens who are no longer loyal to Australia and its people. However, the Law Council is not satisfied that the removal of citizenship is a necessary, reasonable or proportionate response to potential terrorist threats. Where the Parliament introduces laws which are not necessary, reasonable or proportionate, the rule of law is undermined.

As presently drafted, the legislation could apply to conduct which may be unrelated to a lack of allegiance to Australia. And because it is necessarily limited to only a certain class of individuals (dual nationals/citizens), it raises a number of complications not dealt with by the Citizenship Act. For example, what happens if the person is Australian born but on birth automatically takes dual nationality. Why would such a person lose their Australian nationality but not someone who engaged in identical acts but was not a dual national?

The legislation is silent on protections for children or preventing indefinite detention and effective statelessness.

Furthermore, the procedures for losing citizenship and subsequent administrative action do not provide sufficient safeguards to accord with the rule of law, the presumption of innocence, the right to a fair trial, and the right of appeal.

The Law Council is also urging Parliamentarians to consider amending the proposed legislation to afford better protections to individuals who it is claimed have supported terrorism. Ideally, the legislation should provide that loss of citizenship would only flow after a conviction. At the very least, it should follow a full and robust intelligence assessment by the Australian Security Intelligence Organisation which can be subject to judicial review by an independent, impartial and competent court or tribunal. Any decision by the Minister, particularly in the absence of a criminal conviction for an offence, should be subject to review.

As it stands, provisions in the Bill are simply too poorly defined.

When the legislation refers to fighting for or in the service of a terrorist organisation, it casts the net so broadly that it could conceivably catch people who the government cannot be intending to capture, such as aid workers or volunteer medical staff, particularly if they happen to act outside the strict confines of the organisation they work for, while in a conflict zone.

The Law Council will continue to argue that the legislation is a flawed response to the problem of terrorism, and at the very least, seek amendments that protect the right of individuals to enjoy security of citizenship of Australia.

Read more »

Stripping citizenship of dual nationals will ‘erode cherished freedoms’: Australian Bar Association

The Australian Bar Association has warned the Government that the latest anti-terror Bill will "erode cherished freedoms".

The Bill allows for dual nationals to lose their citizenship if they have been engaged in terrorism.

But the Bar Association has joined a range of other legal groups in arguing it breaches the constitution.

Association president Fiona McLeod said revocation of citizenship should only occur where a person has been convicted by a court.

"We cannot have public servants making these decisions without due process and these matters being heard by courts," Ms McLeod said.

The Bar Association's submission argues it is unconstitutional to have secret assessments made by public servants.

"The rule of law requires that we see justice and people know what they are being charged of," the submission states.

"They have a right to a fair trial, they have a presumption of innocence, they have a right to present a defence.

"Those are the things in Australia that we hold dear and those are the things that we have to say must be reflected in any act that seeks to strip citizenship away from our citizens."

Parliament's joint intelligence and security committee is examining the bill, including whether it is constitutional.

Shadow Attorney-General Mark Dreyfus told a hearing  there were many legal views that it is not.

"The position is that a large number of the most eminent constitutional lawyers in Australia has told this committee that the bill is unconstitutional or very likely to be struck down by the high court," Mr Dreyfus said.

Immigration Department head Mike Pezzullo told Mr Dreyfus the Government had legal advice that it is constitutional — but on Ministerial advice it would not be released to the committee.

"The Government has advice to hand that suggests that we are on legally sound ground, it's defensible and it's a common practice — common enough almost to be invariably the case that legal opinions are not made public by way of submission to committees," Mr Pezzullo said.

That frustrated Labor's Senate leader Penny Wong.

"We've had quite a lot of evidence which is putting forward a view as casting doubt as to the constitutionality of this proposed legislation and the only answer the Government has appears to be 'trust us, take us at our word - it's fine'," Senator Wong said.

Mr Dreyfus spelled out his concerns about the Bill.

"We've got a secret process conducted by Australian public servants looking at secret classified information, who are going to write a secret report to the Secretary of the department, who writes another secret report to the Minister, who signs a form that revokes the Australian citizenship and the Australian never needs to be told and never needs to be given reasons," he said.

"After this secret process is completed, the Minister does not need to inform the Australian whose citizenship has been revoked until the Minister thinks it's appropriate?

"That's right, it's not a requirement of the legislation for the person themselves to be notified."

The joint intelligence and security committee is due to report on the bill at the end of next week.

Australian Security Intelligence Organisation (ASIO) deputy director general Kerri Hartland told the committee being able to strip citizenship from dual nationals would be a useful option.

"We need to have every tool at our disposal, this is but one of those tools but it doesn't stop us doing other things," she said.

Deputy Commissioner of the Federal Police Mike Phelan said he could see it being helpful.

"The deprivation of citizenship for dual nationals, particularly if we are talking about those that are offshore — if it means keeping them offshore — then as far as I am concerned that's once less thing I have to deal with," he said.

The Muslim Legal Network in New South Wales has echoed the concerns raised by the Bar Association.

The president of the Muslim Legal Network, Zaahir Edries, said the Bill would further alienate Australian Muslims.

"There are already significant pieces of legislation available now which protect Australia from the threat of terrorism or those persons who may wish to cause harm on our nation," he said.

"By including further legislation, certain parts of the community just feel that it is a targeted piece of legislation and unfairly so.

"There have been some wide criticisms about the drafting of the Bill and the holes that need to be plugged, and that’s really the important aspect.

"Making sure that if such legislation is enacted that there's enough checks and balances to make sure the legal system has a really wide play in what's going on.

"It really shouldn't be just up to the minister to make these decisions."

Read more »

Australia Post link to visa crime racket claim

Australia Post has sacked a millionaire labour hire contractor who is at the centre of a major federal police fraud probe and who has been accused of exploiting overseas workers.

The Ferrari-driving contractor, Baljit "Bobby" Singh, and two of his business associates appeared before the Melbourne Magistrates Court  to face several criminal charges. 

Mr Singh allegedly heads a syndicate bringing students to Australia on the pretence of doing courses at a government-subsidised education college in Melbourne's north. The students are often promised a working visa or permanent residency at the end of their education course.

However, the education is often not delivered, and the students are sub-contracted to Australia Post where they work at sub-award wages, sorting and delivering packages.

The revelations are acutely embarrassing for Australia Post and its owner, the federal government. Each has been effectively funding Mr Singh's operations - Australia Post through contracts with his labour hire companies, and the federal government through millions of dollars in student fee subsidies to his college, St Stephens Institute in Reservoir, Victoria.

In a statement given to Fairfax Media ,Australia Post said it had "terminated all delivery contracts with a Victorian contractor at the centre of an Australian Federal Police investigation, reinforcing the strong working relationship with authorities and commitment to stamping-out any alleged illegal behaviour."

Australia Post has been repeatedly warned since 2012 that Mr Singh allegedly exploits overseas workers and students, although senior Australia Post staff insist they previously lacked the evidence to take action. 

Mr Singh's syndicate allegedly involves several other Indian business figures, including a licensed government migration agent, and student recruitment agents in India and China. 

Acting on information uncovered by a Fairfax Media investigation, detectives from the Australian Federal Police's Crime Operations team this morning swooped on properties linked to Mr Singh. His Ferrari has been seized under proceeds of crime laws. 

His St Stephens Institute has attracted hundreds of fee-paying foreign students over several years, including many from India, who find themselves being recruited to work for Mr Singh as posties and delivery centre staff.

Mr Singh is suspected of underpaying, or paying no superannuation or overtime, to many of these foreign workers, who are effectively indentured to him on the promise of obtaining Australian visas to work or study.

The involvement of the government-owned and iconic Australia Post in Mr Singh's suspected visa rorting and worker exploitation comes as the federal government resists a push by unions and the ALP to clamp down on the way foreign workers, often recruited by exploitative agents, are accessing the local job market.

The issue has most recently come to prominence in connection to the China Free Trade Agreement, which will enable some businesses to employ temporary migrant workers without testing whether anybody locally is willing to do the work.

The revelations about Australia Post also raise fresh questions about the long-standing failure of immigration authorities to combat syndicates who are suspected of rorting temporary labour or student visa schemes and exploiting overseas workers.

Senior law enforcement sources say the newly formed Australian Border Force, which has taken over immigration investigations, is still months away from running any effective operation to combat dozens of criminal groups involved in migration crime.

Australia Post scrambled to deal with the fallout from the AFP operation by releasing a statement about recent moves to overhaul its compliance regime. It is also understood Mr Singh's contracts are likely to be terminated, with Australia Post to ramp up its spot checks and encourage whistle-blowing to ensure "workers are being paid correctly and engaged legally".

Fairfax Media has obtained documents showing the Communications Union, which represents postal workers, has been warning Australia Post since 2012 about Mr Singh's operations. On July 30, 2012, union state secretary Joan Doyle wrote to Australia Post manager Vance Duke, warning about the mistreatment and sham-contracting of workers at delivery centres contracted to Mr Singh's firms.

"These arrangements have led to many types of exploitation," Ms Doyle wrote.

"We know that many of these workers are not covered by Worker's Compensation and do not receive superannuation. Some of them are paid cash in hand and operate with international [driver's] licenses. Many receive no payments for over-time hours or early starts."

In late 2014, Ms Doyle began action in the Fair Work Commission against Mr Singh's companies in a move that led to the union writing to Australia Post to reiterate its concerns about his operations. Australia Post moved to overhaul its compliance regime in April.

Last November, Fairfax Media discovered that Mr Singh and his associates were using fraudulent National Police Checks to pass various regulatory hurdles, including those required to operate a college for international students.

AFP checks are also required to work in certain Australia Post roles, given the sensitivity around handling mail.

Mr Singh is only one of several figures allegedly running migration or labour rackets with impunity.

The rackets often involve foreign student colleges, employers or migration agents who recruit foreign nationals willing to make large payments to obtain the qualifications or jobs needed to get Australian visas or permanent residency.

Fairfax Media has identified several colleges and migration agents who are taking large cash payments in return for providing fraudulent qualifications, fake work placements or jobs in which overseas workers are exploited.

 "You have refugees fleeing for their lives and they end up in detention but any cashed up worker can come over to Australia very easily and get a job and a visa. It drives down labour rights and conditions," Ms Doyle said.

Earlier this year, Fairfax Media reported that infrastructure giant Thiess employed migrant workers on illegal contracts that allowed the company to sack and deport them for joining unions, as new evidence emerges of human rights violations under Australian visa programs.

A Senate inquiry is also investigating foreign worker exploitation, following allegations of migrant farm labourers being grossly underpaid and kept in slave-like conditions.

In a statement, Australia Post said: "If there is evidence a contractor is not complying with relevant workplace laws, we will exercise any appropriate contractual rights to remedy the situation – including termination of contract and working with authorities."

Rakesh Kumar, 37, and Mukesh Sharma, 42, appeared before Melbourne Magistrates on five charges each, including conspiring to obtain or gain from a Commonwealth entity, possessing forged documents and dealing with money or property that is suspected of being the proceeds of crime. Mr Kumar is also charged with falsifying documents.

Both men were granted bail to return to court in January. It is understood Mr Singh remains in custody on similar charges, but prosecutors are unlikely to oppose him being granted bail.

Read more »

Immigration raids Pie Face over low wages

Immigration officials swooped on a Pie Face operation in Sydney on Monday following reports of the exploitation of foreign workers.

The raid was triggered by a tip-off to the Department of Immigration and Border Protection earlier this month, which included claims relating to the underpayment of a group of workers on 457 visas.

The immigration department would not discuss details of the investigation but confirmed it was aware of the allegation Pie Face workers had been underpaid.

It's understood the surprise visit was part of an integrity and compliance operation being undertaken by the Department of Immigration and it is likely accounting data including wage payments were seized.

The Immigration Department would not reveal whether the workers were employed at Pie Face head office or in one of the outlets. Pie Face corporate operates 12 outlets but the majority of the fast food chain stores are franchised.

Pie Face chief executive Kevin Waite did not return calls to Fairfax Media.

Read more »

United States DHS Announces Temporary Protected Status Designation for Nepal

It is noted that the Australian Minister Peter Dunton has refused to allow any special program to Nepalese effected by the disasters.

WASHINGTON—Secretary of Homeland Security Jeh Johnson announced his decision to designate Nepal for Temporary Protected Status (TPS) for 18 months based on the conditions resulting from the devastating magnitude 7.8 earthquake that struck Nepal on April 25, 2015, and the subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Register notice published today provides details and procedures for applying for TPS.

The TPS designation for Nepal is effective, June 24, 2015, and will be in effect through December 24, 2016. The designation means that, during the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period began June 24, 2015 and runs through December 21, 2015.

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.

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Update on Lee case: Subclass 457 review rights restored

A decision by Justice Street in Kandel v Minister for Immigration [2015] FCCA 2013 the Federal Circuit Court in Sydney has brought some resolution to the problems arising from the Lee case. The Lee case resulted in the Migration Review Tribunal deciding it did not have jurisdiction to review a Subclass 457 visa application refusal if an approved nomination was not in force when the review application was lodged.

Justice Street’s decision is that the AAT has jurisdiction to consider an application for review of a Subclass 457 visa refusal if there is an application for a review or a nomination refusal that identifies the applicant.

The legal issue is still also being considered by the federal court

MIA Notice – 10 August 2015

Australia defies Afghanistan as asylum seeker forcibly repatriated

The Australian Government is hoping to break an impasse with Afghanistan by forcibly repatriating an Afghan asylum seeker.

The Afghan government wants to stem the flow of forced returns from Australia and other countries and, in recent weeks, has blocked the return of the man involved.

Recently Australia made another attempt to send him home, in a case that could serve as a precedent for hundreds of other Afghans in his position.

The man, known only as Abdul for security reasons, was scheduled to board a flight to Kabul, via Dubai, in Perth.

The ABC understands his planned repatriation in July was cancelled at the last minute because the Afghan government would not issue visas to the man's guards.

Professor William Maley, director of the Asia-Pacific College of Diplomacy at the Australian National University, said the case was part of a global pattern.

"The Afghan government has refused to accept returnees from European countries and has also refused to issue visas to guards to accompany one person from Australia whom the Australian Government was attempting to send back to Afghanistan," he said.

The situation continues to deteriorate in the Afghan capital Kabul, which has just experienced its bloodiest weekend in years.

"The situation is extremely fragile in Afghanistan at the moment," Professor Maley said.

He said the violence was contributing to the Afghan government's reluctance to accept forced returns.

"Kabul, the capital city, has been hit by a series of bomb blasts in the last few days, including ... a bomb blast at the entrance to Kabul international airport [yesterday]," he said.

"It's also the case that there have been bomb attacks in other parts of the country as well as part of this campaign, and this has set people's teeth chattering in a way that hasn't been the case for quite some time."

Professor Maley said Abdul's case had the potential to harden Afghanistan's resolve if the situation became embarrassing.

"Somebody in his position could indeed be turned around at the airport, but it's equally likely that if the Afghan government finds his case embarrassing, even if he's allowed into the country, it would prompt a further round of instructions to Western countries not to even contemplate such returns in the future."

It is not clear whether or not the correct visas have been issued to Abdul's guards, but Ian Rintoul from the Refugee Action Coalition said he expected the repatriation would go ahead.

"You would have to say that it's very likely the Australian Government will get away with this particular removal," he said.

"The fact that it has gone as far as it has and they've taken Abdul from Yongah Hill would indicate the Afghan government has issued visas for the escorts that they didn't issue last time."

Mr Rintoul said it could create a troubling precedent for hundreds of Afghan asylum seekers who had also been denied refugee status by Australia.

"It could mean that the way was more open for the Government to more systematically attempt to remove Afghan asylum seekers and that would be a huge issue for Afghanistan, it would be a huge issue for Australia because, as I said, it's probably a couple of hundred people who would be more or `less immediately vulnerable," he said.

Afghan community leader Ali Khan made a number of last ditch efforts to stop the deportation, including speaking with the ambassador and even the airline, Emirates.

"If they say that it is not safe for Abdul to be deported back to Afghanistan then that should be taken into consideration by the [Department of Immigration]," he said.

"In the meantime, I have also contacted the Emirates airline to trigger this issue for their consideration as well, because it is their duty of care as well for not returning people to danger."

In a statement, the Afghan Embassy in Australia said it was against forced returns in general.

"Given the last days' attacks in Kabul, we think it is not appropriate to return anyone under such circumstances," the statement said.

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Migrant workers’ unpaid wages ‘should go to govt’

The government would be paid wages that employers withheld from migrant workers, under a plan to prevent exploitation that victims’ advocates say will allow Canberra to profit from forced labour.

People who employ migrant workers in breach of their visa conditions currently face fines of up to $51,000, and companies face fines of up to $255,000 for each worker under the Migration Act.

The Productivity Commission recommended in its draft report on workplace relations that employers who exploited migrant workers, who were more vulnerable to “substandard working conditions”, should be punished further with fines raised by the amount of money workers were underpaid.

“The two-part penalty should be high enough to deter employers from engaging in unlawful behaviour,” it said.

Such fines are returned to consolidated revenue, a spokeswoman for the Immigration Department confirmed.

Jenny Stanger, national manager of the Salvation Army’s Freedom Partnership, said: “It is unfair for workers to be firstly deprived of wages by unscrupulous employers and a further injustice for the government to then collect those stolen wages.”

Few migrant workers, including those in Australia without a valid visa, claimed unpaid wages through Fair Work Ombudsmen, she said, either because they were deported or had limited support to do so. Undocumented migrant workers are not entitled to the minimum wage and national employment standards.

The Productivity Commission cautioned against law reforms that would guarantee them appropriate pay conditions and improved workplace rights because this “may cause more migrants to seek work in breach of their visa conditions”.

University of Sydney business lecturer Stephen Clibborn said people working without valid visas should still risk deportation while maintaining a right to lost wages.

Migrants who chose to work in breach of their visas could not easily be distinguished from those who were forced to do so.

“[Both groups] are commonly suffering exploitative work in the form of underpayment of wages, harassment and unsafe working conditions. The employer and employee are equally in breach of the Migration Act and my concern is that employers have been able to profit from this breach, while employees are suffering.”

Increasingly already significant fines would do nothing to reduce demand for cheap labour, and continuing to deny undocumented migrants workplace rights would not help either, given the risk of deportation had not dampened the supply of workers, he said.

The report said there may be more that 100,000 migrants working against their visa conditions.

Mr Clibborn said the number may be growing as more temporary visas were being issued. While he welcomed the report’s recommendation that the Fair Work Ombudsmen be better funded to investigate exploitative employers, he said the risk of detecting them was still low.

Employment Minister Eric Abetz is awaiting the commission’s final report.

Sydney Morning Herald – Jane Lee – 6 August 2015

Sydney University weighs compulsory English courses for foreign students

The University of Sydney's prestigious business school may introduce compulsory language courses for foreign students with poor English skills after more than 400 students, mostly from China, failed a core unit of their masters degrees.

About 37 per cent of more than 1200 students studying the Critical Thinking in Business course at the business school failed the subject last semester and about 12 per cent of students in the Succeeding in Business course also failed.

A pass in both courses is required to complete a Master of Commerce and a Master of Professional Accounting.

The business school's deputy dean (education), Professor John Shields, said the failure rate in the critical thinking unit in previous years had "generally been quite high" – between 15 and 20 per cent – but there were "enormous concerns" after a substantial increase in the numbers of students not passing.

In many cases, he said, students' pre-exam marks were much higher than the mark they scored in the exam, suggesting either "extreme exam anxiety" or "undue assistance".

Professor Shields said he did not have sufficient evidence to pinpoint the reasons for the poor performance but ghostwriting and poor English skills could be to blame.

"We can catch and kill plagiarism with the touch of a button with Turnitin [plagiarism detection software]," Professor Shields said. "Plagiarism is not where the major problem is, it is ghostwriting."

The University of Sydney was among the institutions worst-affected by the MyMaster scandal, revealed by Fairfax Media last year, in which as many as 1000 students from 16 universities hired the Sydney-based company to write their assignments and sit online tests.

Professor Shields said the school had introduced a "mandatory final exam", which means students cannot pass the unit if they do not pass the exam.

"The decision was taken that we need to be seen to be enforcing the importance of academic standards," he said.

"If a student isn't demonstrating a sufficient level of proficiency in a final exam, we shouldn't be passing them [in that unit]."

Professor Shields said the business school expected its international students to achieve high scores in English language tests, but at the moment there was no compulsory course that students had to complete to ensure their English improved.

"We need to do what we can to support students and there will be some students referred to extra support, and we are looking at making that support mandatory," he said.

The Sydney University Postgraduate Representative Association said the university was "negligent" by failing to adequately support students ahead of their exams.

"I unequivocally state SUPRA's strong support for academic standards and the most robust commitment to integrity of courses. So in a sense, we applaud the business school for trying to go down that route," said the association's president, Christian Jones.

"However, if you try to raise requirements, you have to also improve support so students have a fair chance to reach those standards."

Read More >>

Refugee crisis raises Indonesian ire

The Government's decision to stop resettling refugees registering in Indonesia has strained social services and detention centres at Australia's largest neighbour.

In the eight months since the change in policy, the number of asylum seekers and refugees registered with Jakarta have increased by 30 per cent to 13,188 people, according to United Nations data.

The increased burden on Indonesian social services and detention centres – Indonesia is traditionally seen as a transit country, particularly for Australian resettlement – threatens to further strain relations between the neighbouring nations, already suffering from the fallout of the Bali executions and reduced cattle import quotas.

Each month, several hundred people arrive in Indonesia seeking asylum. The majority are Shia Hazara of Afghan origin, along with Tamils, Somalis, Iraqis, Iranians and Rohingya from Myanmar.

MIA Newsletter – 29 July 2015

UK-style secret courts for terrorism cases praised

The head of the Federal Parliament's key security and intelligence committee has put controversial British-style secret courts for terrorism cases on the political agenda, saying such an approach balances national security with judicial fairness.

 

In a speech to Parliament, Liberal MP Dan Tehan praised Britain's use of "special advocates" – security-cleared lawyers who defend suspects in terrorism and immigration cases in which evidence is classified, meaning the proceedings are closed even to the defendant.

Mr Tehan, who made headlines last week by calling for Australian air strikes in war-torn Syria, said on Monday he and other MPs had been briefed in detail on special advocates during a recent visit to Britain.

"The UK has an advanced system of special advocates who represent the interests of clients but also have access to certain classified information which may not be able to be presented in other circumstances," he told Parliament. "This system importantly balances security needs with ensuring fair representation during judicial proceedings.

"Speaking with UK agencies, the independent reviewer of terrorism legislation and a special advocate provided an invaluable insight into the benefits of this approach."

As chairman of the parliamentary joint committee on intelligence and security, Mr Tehan has an influential voice within the Coalition on security issues.

Fairfax Media asked Mr Tehan whether he advocated Australia's adoption of the same approach as Britain, but he had not responded by deadline on Monday.

The Abbott government is preparing further national security legislation that is expected to make some adjustments in response to the experiences of police and security agencies from the wave of terrorism-related arrests over the past year.

This new legislation is expected to include changes that will enable police to use classified intelligence in affidavits to obtain search warrants, which will require security-cleared judges to consider the applications in secret.

Agencies have become increasingly concerned that existing laws do not allow them to use such material while still protecting the identities of their informants and their own capabilities.

The further step of British-style secret courts with special advocates is not expected to be part of the next wave of legislation. However, the Abbott government has in its recent changes to national security laws repeatedly followed examples set by Britain, including on issues such as citizenship and data retention.

Britain has used special advocates since 1997. Canada also uses special advocates in closed courts for certain national security and immigration cases.

However, the approach has been controversial. The special advocates themselves in Britain, in a joint-submission to the government in 2012, said the closed courts "represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own".

The Abbott government's next tranche of counter-terrorism laws are also expected to include some changes to the system of control orders, which are issued by a court and can impose curfews on terrorism suspects, compel them to wear a tracking device and restrict who they can communicate with.

Read More >>

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