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

Barriers

Hurdles on athletic track

Lack of knowledge

The greatest barrier to making use of non-judicial accountability mechanisms is lack of knowledge. A mechanism cannot be used at all if people do not know it exists. Even if they do know that it exists, they may not use it because they do not know how to use it. The Asylum Seeker Interagency in NSW (see Part I 4.2 below) has had special meetings to which it has invited representatives of bodies such as the AHRC and the Ombudsman’s Office to explain the basics, including what they can and cannot do. This kind of engagement is valuable in helping people to know of these mechanisms and how to use them.

Familiarity with the basics is rarely enough to make effective use of any of the mechanisms. Those informants who felt they were making the most effective use of a particular mechanism had usually acquired their know-how through experience. Unfortunately, few in the sector can afford the inefficiencies inherent in learning by doing. Some informants reported compensating for personal inexperience with a mechanism by seeking assistance from colleagues or others in the sector known to have the necessary knowledge or experience. It is hoped that this report will be another means of helping people know about these mechanisms and how to use them more efficiently.

Lack of contacts

A theme which emerged from this research was that informants were more likely to use a mechanism if they not only knew how but also knew who. One informant raised systemic issues with the AHRC rather than the Ombudsman’s Office because the informant personally knew the relevant staff member in the former organisation but not in the latter. They said, ‘I hate cold calling because it just does not work!’

Lack of time

Most organisations and individuals in the sector are already struggling to get their core work done and do not have the time to engage in peripheral activities. Service providers, in particular, regard engagement with non-judicial accountability mechanisms as peripheral rather than core to their work. The exception to this is legal service providers, who regard the use of freedom of information (FOI) legislation as an integral part of their core work.

In the case of some mechanisms, as people gain experience in using it, they need to invest less time in using it. However, even when efficiently used, the cost-benefit analysis may well weigh against using such mechanisms where the aim is to obtain a positive outcome for an individual client.

Lack of physical proximity

A couple of informants, one based in WA and the other in Queensland, drew attention to the fact that geography can be a barrier to access. The Ombudsman has offices in Adelaide, Brisbane, Canberra, Melbourne, Perth and Sydney but not in Hobart and Darwin. There are, of course, federal MPs and Senators based in every state, but Canberra is the only place they all congregate. The AHRC only has an office in Sydney and UNHCR’s only Australian office is in Canberra. The UN human rights mechanisms are Geneva-based, although the special procedure mandate holders are able to, and do, make country visits, including to Australia (see Part II 5.2 below).

Using non-judicial accountability mechanisms effectively

Being credible

The work of the non-judicial accountability mechanisms discussed in this report is done by people. Most of these people face more demands than they can possibly meet given the time and resources available to them. One of the themes which emerged from this research was that they manage the situation through informal filtering where they have discretion to do so. Advocates and service providers who are known and perceived as credible find it easier to get a response than those who are unknown or perceived as lacking credibility.

Some organisations and individuals have the advantage of a high-profile brand or reputation to which a widespread perception of credibility is already attached. Informants who fell into this category acknowledged that it usually made access easier and mechanisms more responsive than would otherwise be the case.

The first hurdle that other individuals and organisations have to overcome is that of being unknown. To overcome this hurdle, they need to cultivate and maintain relationships with the relevant people. Once known, an individual or organisation can earn credibility over time by demonstrating the following attributes.

  1. They possess special knowledge or expertise. For example, those delivering services possess knowledge of systemic issues identified through their client work. According to one informant, ‘I can get a meeting with most people in Canberra because they know you are talking about what you are seeing on the ground.’
  2. They can be relied upon to only raise cases or issues which fall within the mechanism’s mandate (if applicable) and are really important, so they are not perceived to be wasting time.
  3. When providing information, they can be relied upon to have checked the facts and got them right.
  4. When sensitive information is given to them, they can be trusted to use it only as permitted.

Credibility earned by an individual is not necessarily transferrable to their organisation in all contexts. According to one informant, who was in the process of handing their job over to another person, A few key politicians [have] said ‘Look the information that I give to you is because I’ve got [many] years of relationship and trust. In a second, third, fourth meeting with someone from [your organisation] I am not going to give them that level of information.’

People at Refugee Alternatives conference minglingBeing collaborative

Different organisations and individuals have different information, expertise, capacities, contacts, and reputations. Informants reported that where they lacked particular information, expertise or other attributes, they might informally approach another individual or organisation likely to be able and willing to supply what they lacked. In a similar vein, some informants reported that where they thought that another organisation was better placed to take up a systemic issue or to achieve a positive outcome for an individual, they would hand the issue or the case over to the other organisation. For example, one informant from an advocacy organisation said:

Between 2000 to 2010 it would just be us, so we would say ‘We are not lawyers, we can’t take it to the courts, what can we do? We’ll take a complaint to the Human Rights Commission.’ So that’s why we used that mechanism up until that point. Post 2012 there are now more lawyers who are willing to step up. So often if it is a serious case, then we’ll hand it over to [named non-profit legal service providers].

Finally, some informants explained that there were some situations in which it made sense for a certain organisation or organisations to take the lead and for their own organisation and others to come in as needed to supply information or provide support. For example, one informant said: That’s also part of the strategy you know what organisation should be the leader or the one doing the contacts…You normally get names that can open doors pretty easily. I’m happy for them to be the public face and do the work behind the scenes.

In ACT, Queensland, NSW, Northern Territory, South Australia, Victoria and WA, different configurations of organisations and individuals working in the sector have formed networks that meet regularly to share knowledge and to work together to achieve mutually desired outcomes. For example, the Asylum Seeker Interagency in NSW, which was formed about 20 years ago, has meetings every two months attended by 40 to 50 people.

Working with others is particularly useful for small organisations. One informant from a small service provision organisation said,

Liberty Victoria has a group of people who are interested in asylum seeker policies. I go to their meetings and anything I want to say about policy change and so on I say there. They are constantly doing policy interventions and so on; so, I see that as a more useful use of my time.

Pooling information is also useful for identifying systemic issues. One informant gave the following example:

So, there was a lot of communication when the three detention centres were up in Darwin about the use of restraints. And then talking to others and saying ‘What are you seeing, what are you seeing, what are you seeing? OK, let’s get that information to UNHCR or the Human Rights Commission’ … I think that’s really important because then you can say well the pattern’s only happening here or no it’s happening all around Australia.

At the national level, RCOA hosts a monthly 90-minute teleconference of members interested in collaborating on issues relating to detention, regional processing and the onshore asylum process. (Until mid-2019, there were two separate monthly teleconferences of one hour each. These have now been combined.) This is a longstanding national forum for identifying trends, sharing ideas and experience, and identifying issues and opportunities for systemic advocacy.

In recent years, there has been a more focused effort on national collaboration within the sector. RCOA, for example, has supported several national advocacy workshops and working groups in recent years, bringing together a broader range of advocates and advocacy organisations to collaborate more intensely on priority policy areas. In addition it has supported the establishment of several ad hoc working groups for visa cancellations, citizenship delays and on refugee education. It has also run national conferences for the past three years.

As well, there are other collaborative networks. The Andrew & Renata Kaldor Centre for International Refugee Law coordinates a national teleconference on legal issues, while the Human Rights Law Centre supports a broader national teleconference including many advocates and advocacy organisations.

One informant said they sometimes raised cases or issues with non-judicial accountability mechanisms through RCOA rather than directly. Further, when raising cases or issues directly, they kept RCOA in the loop. The informant did both these things ‘So we are not duplicating; we are not asking about the same situation ten times. You know that’s really annoying.’

Another informant explained that in relation to certain matters they tried to work with RCOA because ‘they have the good connections.’ Yet another said: RCOA [has] ramped up so I would ring [them] and say ‘I don’t know what to do, tell us. We are happy to write to someone’ or ‘This is information, do you want it?’

The general view expressed by those who had worked in the sector for a long time was that it is much better at working collaboratively now than it has been in the past. For example, one informant observed: ‘I think the collaboration that’s happening around [MedEvac] I’ve never seen in 19 years.’

However, a number of informants observed that there were still challenges to be overcome. For example, the informant just quoted worked for a religiously affiliated organization and said ‘I’m all for collaboration but sometimes because of our philosophical, ethical views that doesn’t necessarily come together.’ Another informant said:

There is also the problem where we [share out the work] and then organisations don’t take up their action items and then you are like ‘I could have done [that] work and now I am waiting’.

Yet another informant from a large service delivery organisation said:

Quite often we wait and rely on Refugee Council to do something and because of resources they don’t and other organisations step in and then it causes conflict in the sector… Like I have honestly never worked in a sector where half the time it feels like we are battling the sector and individual advocates as much as we are the government.

The informant added that the factors fuelling conflict included ‘different states’ approaches to things’, perceptions that this or that organisation was straying outside its proper lane, and the intense competition for funding within the sector which led to suspicion about other organisations’ agendas.

Being comprehensive and cumulative in approach

When asked why they made use of this or that particular mechanism given the uncertainty (often unlikelihood) of an immediate and direct win, a common response from informants was that no one mechanism was a ‘silver bullet’ but that every avenue pursued added to the overall pressure on the executive government to deliver the desired outcome. Moreover, where systemic change was being sought, the avenues which needed to be used were not just those considered in the present study but also media campaigning and grassroots mobilisation at one extreme and engaging in dialogue with DHA officials at the other.

Another theme which emerged in relation to systemic change was that big wins were more often secured through an accumulation of small wins over time than in one go. One informant said:

If we sort of think we need to go out there and bang make some big change now, it’s not going to happen. It’s 19 years of the fear rhetoric you know since the Tampa. So it’s 19 years in the Australian psyche. This is how it is. It will take a long time to change. We just have to keep doing it…You know this space is meaningful work but it’s probably only 20 per cent successful.

Taking the long view is important. Another informant said ‘the most important thing is to recognise the wins that are not possible [now] but to lay the groundwork [now].’

Recommendations

Agencies

R1. AHRC, the Ombudsman’s Office and UNHCR should adopt key performance indicators on engagement or provide other institutional incentives for their staff to engage proactively with the refugee sector, including refugee communities, around Australia.

R2. AHRC, the Ombudsman’s Office and UNHCR should consider hiring more staff with refugee sector experience in order to enhance sector connections.

Sector R3. RCOA and/or the various state & territory networks should provide regular opportunities around Australia for the sector to meet with staff of AHRC, the Ombudsman’s Office and UNHCR in order to improve access and facilitate the development of personal relationships.

R4. RCOA and/or the various state & territory networks should facilitate greater understanding of the use of non-judicial accountability mechanisms, preferably involving representatives of the mechanisms in question.

R5. Representatives from the various State/Territory networks should convene to discuss common challenges and learnings.

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