The use of non-judicial accountability mechanisms by the refugee sector in Australia

Australia is a party to seven of the nine core international human rights treaties. The ICCPR and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are of particular relevance in the present context as they contain non-refoulement obligations which apply to all persons not just ‘refugees’ within the meaning of the Refugee Convention and Protocol.

The UN Human Rights Committee supervises the implementation of the ICCPR and the UN Committee against Torture supervises implementation of CAT. States parties are required to report to these treaty bodies every four years on their implementation of their treaty obligations. Like the reports of most other states, Australia’s reports tend to be self-serving. However, in assessing Australia’s reports, the treaty bodies are able to draw upon information submitted by other actors. Unfortunately, the observations made by the treaty bodies on the reports of states parties are not binding on the states parties concerned. Another problem is that both the submission and consideration of reports happens in such an untimely fashion and so much ground has to be covered in the consideration of a report that it would be unsafe to rely on the reporting mechanisms as effective devices for monitoring the extent to which a state party is complying with any particular treaty obligation.

As well as being accountable through the reporting mechanisms, Australia is accountable through individual complaints mechanisms set up by the [First] Optional Protocol to the ICCPR and by article 22 of CAT. Pending final resolution, both the UN Human Rights Committee, which deals with individual complaints relating to the ICCPR, and the UN Committee Against Torture, which deals with individual complaints relating to CAT, will request the state party concerned to take interim or provisional measures if that is necessary to avoid ‘irreparable harm’ to the alleged victim.

Where a complainant alleges that a state party is about to refoule them, the committee to which the complaint has been made will usually request that the state party halts removal proceedings until the complaint is heard and resolved. Australia has procedures in place for considering interim measures requests relating to removal, but does not always accede to such requests. Another problem is that the views that the treaty bodies express on individual complaints are not binding on the states parties concerned. Both Labor and Coalition governments have relied on this fact as a reason for refusing to provide remedies to those whose complaints are upheld by a treaty body. According to Remedy Australia, Australia has provided a remedy in only 13 per cent of the complaints upheld against it.

Under OPCAT, Australia has an obligation to allow the UN Subcommittee on the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) to visit ‘any place under its jurisdiction and control where persons are or may be deprived of their liberty’ (article 4). In July 2019, the SPT announced that it would be visiting Australia in the coming months.

As well as the human rights treaty bodies, there are the ‘special procedures’ of the UN Human Rights Council. Some of these have taken an interest in Australia’s treatment of refugees and people seeking asylum, including the Special Rapporteur on the Human Rights of Migrants, the Special Rapporteur on Torture, and the Working Group on Arbitrary Detention. Finally, commencing in 2008, the UN Human Rights Council has conducted a Universal Periodic Review of the human rights performance of every UN member state over a five-year cycle. As in the case of the human rights treaty bodies, these other human rights mechanisms have powers of recommendation only and their recommendations are often rejected by Australia.

It should be noted that the work of all the UN’s human rights mechanisms suffers from chronic under-funding.

Seventeen of our key informants had engaged with UN human rights mechanisms in some way.

Using individual complaints processes

Five key informants said they had used the individual complaints processes.

Informants who had used, or contemplated using, the complaints processes were well aware that years can elapse between the making of a complaint and the final resolution of it. One legal service provider said it was, therefore, only worth considering in, for example, long-term indefinite detention cases. The informant had not used the complaints processes because they thought that getting a finding in their client’s favour would not help the client with the current government.

Another informant who had contributed to the making of three such complaints in the 1990s thought that it was worth doing despite the Australian government’s propensity to ignore findings against it, saying: Because if you build the case eventually the edifice has to come crumbling down, doesn’t it, that says it’s ok? … I do think that you have to have that long-term vision that even if the case fails, even if it doesn’t work, you are building a picture and you have to have that long view.

However, the informant added: Your first duty is to the person you are making a complaint for not the big picture, so you are upfront with the individual you are talking to and say ‘This might make no difference but you will be contributing to building a picture of what’s going on. Are you still willing to do it?’ 5.2 Providing information to UN human rights mechanisms Eleven key informants said that they had provided information relating to refugee and asylum seeker issues to UN human rights mechanisms. Two said they visited Geneva for that purpose, among others. In fact, one of the two spent a couple of weeks in Geneva every year. That informant said their organisation then continued to follow up long-distance ‘to try and keep the interest there and to be able to feed some of the information we have.’ They also said that their organisation had ‘pushed hard’ to have special procedure mandate holders to come to Australia and to file reports in order to keep an international spotlight on Australia.

A few informants said they hadn’t proactively sought to provide information to UN human rights mechanisms but had met with special procedure mandate holders who had visited Australia and reached out to the sector.

There were two points of general consensus among informants. First, UN treaty body members and special procedure mandate holders were responsive to the sector’s concerns and did excellent work. Second, their influence on Australian government policy was limited to non-existent. Despite making the latter observation, one informant explained why it was worth persisting in the following terms:

Sometimes these things just need to be said. Obviously, you want it to change. You want it to have an effect, but it’s more than that too. It’s if there are these injustices, if human rights are not being respected, I think there’s a moral obligation to speak out about it…. So, part of it is the issues need to be documented and [to be] in the public realm, because, if you’re not working directly in this area, then you could profess ignorance if that information isn’t there. So, the information being there is a starting point. It’s not all of it, but, if it’s not there, nothing’s going to change.

Using information made available by UN human rights mechanisms

Thirteen of our key informants said they had used information made available by UN human rights mechanisms in individual case work or broader policy/advocacy work. One informant who drew on such material for protection visa applications said:

I mean we use it in submissions but then the Department always ignores it anyway. But we still use it because ‘I dare you to refuse it. This is the [information], you go and refuse it.’ …. I know they are going to refuse it, but I want to make it harder for them to refuse it.

Recommendations

Sector

R28. In deciding whether to engage with UN human rights mechanisms, consideration should be given to the potential for indirect medium and long-term payoffs as well as the potential for direct short-term ones.

R29. In order to maximise the potential for long-term payoffs, the sector should systematically follow up on the government’s implementation of relevant recommendations made by UN human rights mechanisms and should report back to the mechanisms on the government’s performance.

Government

R30. The government should ensure that its reports to the UN human rights treaty bodies are of high quality and made in a timely fashion.

R31. The Attorney-General’s Department should keep its UN human rights recommendations database up-to-date, should expand it to include individual complaints relating to Australia, and should include information about the government’s acceptance/rejection/implementation of recommendations.

Other non-judicial accountability mechanisms

Most of our informants were asked whether they had used non-judicial accountability mechanisms other than those discussed above. We deliberately left it to informants to define the term for themselves and said ‘if in doubt, please include’.

Three informants mentioned the Australian National Audit Office (ANAO) as an example of a Commonwealth oversight body they had usefully interacted with in relation to issues affecting people seeking asylum. The ANAO consists of the Auditor-General, who holds office under the Auditor-General Act 1997 (Cth), and staff. Among other things, it is able to conduct performance audits of Australian government entities and report on these to parliament. The ANAO consults with the public in setting its annual audit program and also invites contributions from the public when conducting performance audits. Since 1 July 2016, the ANAO has reported on six performance audits which focused on DHA. In 2019-20, it is assessing the effectiveness of the delivery of the Humanitarian Settlement Program and the appropriateness of DHA’s procurement management in relation to immigration processing centres.

Some informants mentioned bodies which had been set up administratively to give advice to government on immigration portfolio issues. A number of these no longer exist. The Immigration Health Advisory Group, which was established in 2006 in response to recommendations made in the Palmer and Comrie inquiry reports, was disbanded in late 2013. The Ministerial Council on Asylum Seekers and Detention, which was set up by the Labor Government in 2009, ceased to function in April 2018 when the term of its then members expired.

The Joint Advisory Committee for asylum seeker management under the Regional Resettlement Arrangement in Papua New Guinea (PNG JAC) and the Joint Advisory Committee for Nauru Regional Processing Arrangements (Nauru JAC) were set up under Australia’s Memoranda of Understanding with PNG and Nauru respectively. The PNG JAC had a membership of Australian and PNG officials and two independent experts acting as observers. However, by agreement between the Australian and PNG governments it ‘transitioned to regular senior officials level meetings’ in mid-2017.

The Nauru JAC had a membership of Australian and Nauruan government officials, independent subject matter experts and representatives of UNHCR and the Commonwealth Ombudsman. In July 2018, by agreement between the Australian and Nauruan governments, it was replaced by ‘new governance arrangements includ[ing] an Independent Advisory Panel’. However, as was the case with the independent members of the Nauru JAC, the Independent Advisory Panel is too lacking in formal or informal authority to serve a useful accountability function.

The Independent Reviewer of Adverse Security Assessments, which still exists, was set up by the Labor government in 2013 to review adverse security assessments issued by the Australian Security Intelligence Organisation (ASIO) in relation to people who would otherwise be eligible for the grant of a protection visa. The position has no statutory basis and all the reviewer can do is to form a view about the appropriateness of an assessment and make it known to the Director-General of Security. Nevertheless, the two informants who mentioned it thought the existence of the mechanism made a difference. According to one of them, the knowledge that there was an independent person able to review its assessments seemed to have caused ASIO to be more careful in making them or insisting on their continued applicability as the case may be.

Five informants indicated that they had attempted, with varying success, to get state/territory level children’s commissions/child protection agencies to intervene with DHA in relation to matters involving children seeking asylum. Some state/territory authorities refuse to get involved on the basis that immigration matters are the domain of the federal government. However, others have been willing to try to hold DHA to account. For example, in response to concerns about children in immigration detention raised by the media and people in the community, Victoria’s Commissioner for Children and Young People asked DHA for access to immigration detention facilities in Victoria so that she could assess detention conditions for herself.. DHA acceded to her request

Royal Commissions at both the federal and state level have also been used or considered to be used as opportunities to obtain some level of accountability for the government’s treatment of particular groups of people seeking asylum. An opportunity used in the past has been the Royal Commission into Institutional Responses to Child Sexual Abuse, which was set up by the Australian government in January 2013 and reported in December 2017. One informant, who had interacted with that Royal Commission, said of the outcome:

In their report there was some reference [to abuse of children seeking asylum], but it wasn’t really addressed to the extent that we [would have liked]. And, look, it was a massive, massive job that they did. You have to concede that within that their resources were stretched… There were some departmental processes that because [they were] brought to the Royal Commission’s attention I think there was a little bit of work in the Department, ‘Oh shit we better do that’… I can’t remember exactly what it was… So it kind of did actually have a minimal effect. It wasn’t completely without any effect at all.

Currently running Royal Commissions to which some in the sector have made or may make submissions are the Royal Commission into Aged Care Quality and Safety (federal – due to report on 30 April 2020), the Royal Commission into Victoria’s Mental Health System (due to report in October 2020) and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (federal – due to report on 29 April 2022).

Finally, some informants regarded the media as being an important mechanism for holding government to account and made use of it for that purpose. While the media is an important accountability mechanism in itself, it was left out of the scope of the present study because its role is not formalised within the structures of government or by international treaty. It should be noted, though, that the accountability mechanisms considered in this study are often most effective when they generate media coverage that can place pressure on governments. Public awareness and opinion is most effectively reached through mass media, but the fragmentation of the media in Australia and the hollowing out of the mainstream media have created new challenges in exposing maladministration and breaches of human rights.

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