Refugee Council of Australia
Refugee advocates with backs to camera and in front of Parliament House, in artistic style

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

Introduction

About this project

The refugee sector includes many people across Australia: people who work providing direct services to refugees and people seeking asylum, advocacy organisations, and many passionate individuals. Some have a long history of advocating for individuals. Some are community leaders. Others are friends of those affected. As well, refugees and people seeking asylum often advocate on their own behalf. It is a broad and diverse sector, but it is one under severe financial and emotional strain after years of harsh refugee policies.

As vulnerable individuals, refugees and people seeking asylum are generally unfamiliar with the different Australian organisations that may be avenues to address their issues. They, and their advocates, often need support to identify which avenues are worth pursuing and how to most effectively engage mechanisms. If they cannot engage with these mechanisms, they may be directly or indirectly deprived of rights and remedies. At its worst, this could result in them being deprived of their liberty or returned to persecution.

This is also a systemic challenge, because if refugees and people seeking asylum do not engage with these mechanisms, their problems are not visible or taken seriously. It can be difficult to convince the government there is a problem if it does not hear about these problems and does not have data or cases to suggest there is a problem.

However, there are also systemic challenges in using these mechanisms effectively. Non-judicial accountability mechanisms typically rely on persuading the government and cannot compel governments to act. Government policies and administrations that favour secrecy make it much more difficult for these mechanisms to ensure accountability and transparency. Governments can routinely reject recommendations, resist change or disclosure, or create enough administrative friction that people give up.

This can create a vicious spiral, as people lose faith in these mechanisms and stop using them, making it more difficult for these mechanisms to do their work.

In this context, it was timely to research the effectiveness of these mechanisms from the viewpoint of the ‘consumer’: the advocates who have engaged with these mechanisms. The aims of the project were to identify how advocates were engaging with them and their experience and assessment of these mechanisms, and to make recommendations that would improve the use and effectiveness of these mechanisms.

Methodology

This research project was a collaboration between Dr Joyce Chia, who was the Policy Director of the Refugee Council of Australia (RCOA) at the relevant time, and Dr Savitri Taylor of the La Trobe Law School. Its conduct was approved by the La Trobe University Human Ethics Committee (approval HEC18491).

The researchers reviewed relevant academic and grey literature and material available on the websites of the Australian Human Rights Commission (AHRC), the Australian Parliament, the Commonwealth Ombudsman (Ombudsman), the Department of Home Affairs (DHA), the Office of the Australian Information Commissioner (OAIC), the Office of the High Commissioner for Human Rights (OHCHR) and the Office of the United Nations High Commissioner for Refugees (UNHCR).

The researchers also conducted 45-minute to 90-minute semi-structured interviews with 15 key informants and obtained written input from an additional 20 key informants via surveys in the period from mid-February to mid-May 2019. The key informants, who participated on condition of anonymity, were RCOA members with service provision and/or advocacy backgrounds from the Australian Capital Territory (ACT), New South Wales (NSW), Queensland, Victoria and Western Australia (WA). Finally, the researchers drew on their own knowledge and experience of the sector.

Outline of report

Part I of this report is an overview of the project’s broad findings about the barriers to using non-judicial mechanisms faced by the sector and about how the sector can use non-judicial accountability mechanisms effectively. It ends with some recommendations to relevant actors on how barriers to use can be further reduced.

Part II sets out in turn the project’s findings in relation to each of the non-judicial accountability mechanisms considered. The discussion of each mechanism ends with recommendations to relevant actors on how barriers to use can be reduced and/or the mechanism can be more effectively used.

Acknowledgments

The researchers would like to thank the interviewees and survey respondents for generously giving their time and sharing their knowledge and experience, Dr Jodie Boyd for her research assistance, and RCOA colleagues for their feedback on the draft report.

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