In 2010, lawyer Elizabeth O’Shea started work on her firm’s case representing Mohammed Sagar and Muhammad Faisal. The two men had received adverse security assessments from ASIO, the consequences of which were indefinite detention on Nauru.

Since then, O’Shea has worked with a number of other asylum seekers who have been found to be eligible for humanitarian visas but have then, like Sagar and Faisal, been given adverse security assessments and are therefore not allowed out of detention.

These ASIO assessments have devastating effects on the lives of asylum seekers. Despite this, ASIO are able to make their decisions without trial and asylum seekers are denied access to their assessments, are not permitted to know what they have supposedly done wrong and are not given any opportunity to answer the allegations.

In effect, writes O’Shea in her article for Overland’s latest issue, with these assessments, ASIO is acting as ‘an executive arm of government – unelected and unaccountable’.

Bec Zajac talked to O’Shea about her piece. They discussed the immense power of ASIO, the unconstitutionality of Australia’s policies of indefinite detention, and what it’s like to work as a lawyer in a system where justice is clearly not being served.

Thanks for this excellent piece. What made you decide to write it?

The good folk at Overland asked me about the plight of refugees in detention indefinitely. I had written about Faisal and Sagar’s case when it happened and when the issue came on the national agenda more recently, it was a chance to reflect on the human costs of this policy. My view is that the Australian government locks people away in remote locations so we can’t see their faces and hear their stories. When people get an opportunity to do so, it is often a moment where they change their minds – they can reconsider the issue from a human perspective, without the party politics.

I would imagine that one of the major hurdles asylum seekers face on arriving in Australia is a lack of access to good legal representation. What role can lawyers play in helping asylum seekers confronted with this obstacle?

It’s true – there is some funding for migration matters but it is pretty limited. For example, in November 2010, the High Court allowed asylum seekers who are processed offshore to gain access to judicial review on the Australian mainland of their applications for protection. This created a huge new caseload and there were no funds granted for these applications. Access to judicial review doesn’t mean much if you do not have a lawyer. One of the great things about the legal profession is our tradition of pro bono – many lawyers currently donate huge portions of time through organisations like the Public Interest Law Clearing House to assist people like this. I’m very proud of being part of a profession that does this and I would encourage all lawyers to see it as their responsibility. But at the end of the day, we need better legal aid funding because otherwise our legal system becomes inaccessible for basically everyone, except the 1 per cent.

In your piece, you discuss the ways in which the legal system is failing people you work with on a daily basis. As a lawyer, how does it feel to witness this failure?

Highly unpleasant, but it is increasingly common. The legal system, per se, does or should include a commitment to the rule of law. So in that sense, if we remained true to the basics of Western legal philosophy, people wouldn’t be locked away indefinitely without charge. So the principles are there; the failure is a result of tussles for political power, which come at an appalling human cost. It’s a lawyer’s job to patiently explain why equality and fairness are fundamental to our legal system and how the politics of fear undermines this. So in that sense, as a lawyer witnessing the failure, my overwhelming feeling is that I need to get to work.

You write in your piece that Maurice Blackburn thinks the policy of indefinite detention is ‘unconstitutional’. How then does the government continue to institute its policy of indefinite detention?

Well, this has been an area of significant legal flux. A number of government policies in this field have, when challenged, been overturned by the courts. So we need lots of lawyers to think through these policies and consider whether they are worth challenging. Interestingly, the Constitution of Australia, despite its age, is taking on a new lease of life as case law around rights and the separation of powers continues to develop. We are the only Western jurisdiction without a bill of rights, so in some senses it is filling that gap. Of course, our understanding as a nation of these topics would be better advanced if we had a bill of rights.

You mention that in Sweden, the authorities resettled one of your clients as they were ‘willing to make good on the spirit of the refugee conventions’. How do Australia’s policies regarding detention compare to those of other countries such as Sweden?

I’m not an expert in this field unfortunately, though I think it is an interesting question. It is a big topic. No doubt there are other countries that treat refugees even worse than us. But our contempt for the Refugee Convention is pretty stunning, especially given our ultimately successful bid to get on the Security Council. We like international law and agencies, but only when it suits us.

You write that ‘Villawood and Guantanamo may be oceans apart, but legally they are uncomfortably proximate’. Could you explain the similarities between the two?

Indefinite detention without charge is common to both these places. They both represent what Chomsky described as the shredding of the Magna Carta, usually in the name of national security.

What does it mean for Australians if administrative detention is, as you write, ‘absorbed into our legal system’, and why should we be concerned about this happening?

Well, who’s next? If we let the government trample on some people’s rights, we can’t expect our own to be upheld. I saw that report recently about some poor French woman being abused racially on a tram in Melbourne. Is it any wonder such abuse occurs when our political leaders have a reputation for cruelty towards refugees? The fear of others is currently being nurtured for silly political reasons and it makes us selfish and close-minded. I am a firm believer that we have the potential to create a society where we welcome others, where people help each other and everyone has the potential to lead a fulfilling life, regardless of their background. But to reach this potential we have to speak out against injustice whenever it occurs.