Scott Parkin - Federal Court Challenge

Federal Court Challenge

In December 2005, lawyers acting for Parkin lodged a Federal Court challenge seeking to quash the adverse security assessment. Parkin's lawyers are also acting for two Iraqi refugees, Mohammed Sagar and Muhammad Faisal, who received adverse security assessments from ASIO and were held in immigration detention for over five years. The case may test the power of the Attorney General, under the National Security Information Act, to prevent particular evidence from being heard in an open court.

Parkin’s barrister is Julian Burnside, QC. In an interview on Radio National, Burnside said it may be difficult to appeal the adverse security assessment, and showed concern for the degradation of due process and transparency:

The difficulty that confronts us, potentially, is that the Attorney-General has got power under the National Security Information Act to certify conclusively that revealing the contents of the report would adversely affect Australia’s national security interests. And if he certifies that, then any court hearing our challenge will have to hold a private hearing in which the court considers whether or not to allow the evidence to be produced in court. And in that process the statute directs the Judge to give primary weight to the conclusive certificate of the Attorney, which looks (and it’s never been tested) but it looks as though it gives him the chance to stymie the process of examining the basis for the report.

On November 3, 2006, the Federal Court ruled that lawyers for Parkin and ASIO confer on the release of documents detailing the allegations against Parkin. On November 3, 2006 the ABC reported that Parkin, Sagar and Faisal won "the right to know why ASIO gave them adverse security assessments".

On November 28, 2006 ASIO was granted leave to appeal this decision after lawyers for the security agency argued that providing a list of documents relevant to the Parkin, Sagar and Faisel case would cause "irreparable harm" to Australia's national security. On May 22, 2007, the full bench of the Federal Court revoked ASIO's leave to appeal and ordered the matters be heard by the primary judge.

On November 2, 2007, Sundberg ordered discovery of documents related to the case, including Parkin's adverse security assessment, a classified ASIO "determination" setting out the criteria applied by ASIO in making the security assessment and records of ASIO's advice to the Minister for Immigration which led to the cancellation of Parkin's visa

ASIO's appeal of the order was heard by the full bench of the Federal Court in Melbourne on 28 February 2008. On July 18, 2008, Justices Jessup, North and Ryan rejected the appeal and ordered ASIO to produce the list of documents.

Parkin's solicitor, Ms Ann Gooley, said that counsel for ASIO acknowledged that the adverse security assessment may have been made because of people who Parkin associated with, even if Parkin was not aware of the implications of the associations at the time. Gooley noted that the Haneef case showed the dangers of using an "association" as the basis for decision making.

The case went before the court on 26 June 2009. The court will determine whether Parkin can see the Adverse Security Assessment and supporting documents.

On 30 September 2009, the Federal Court ruled that ASIO did not need to produce the supporting documents.

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