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

Parliament

Parliament House, Canberra

In theory, if Parliament doesn’t like something the executive government is doing, Parliament can pass legislation to prevent the government doing that thing. In practice, Parliament is generally incapable of passing legislation which the executive government does not want passed. This is because the executive government is usually selected by and from the ranks of the Members of Parliament (MPs) whose political party has a majority of seats in the lower house, and those same MPs almost always vote on the side of the government.

On the other hand, the political party of the executive government has not had in the recent past, and is unlikely to have in the foreseeable future, the numbers to control the Senate. It is, therefore, possible for Bills initiated by the government to be blocked in the Senate and for Regulations enacted by the government to be disallowed in the Senate. During the 45th Parliament, 67 of the Bills introduced by the government were not passed. Also during the 45th Parliament, 10 disallowance motions were moved and agreed to.

A lot of Parliament’s work gets done through committees. There are a couple of Senate standing committees which routinely scrutinise the Bills introduced into Parliament and subordinate legislation that is disallowable by Parliament and report on their findings. The government expenditure estimates contained in main and additional appropriation bills are examined and reported on by the Senate legislation committees. The Senate Legal and Constitutional Affairs Legislation Committee is responsible for examining DHA estimates. It does this by asking questions of DHA officers either at the public hearings held three times a year or on notice.

Another thing that parliamentary committees do is to hold inquiries. This is a mechanism through which Parliament can investigate important matters for itself. In some cases, a select committee is formed in order to inquire into a particular matter. Parliament’s standing committees also conduct inquiries.

For example, the Senate Legal and Constitutional Affairs Legislation Committee has conducted inquiries into many Migration Act amendment Bills and the Senate Legal and Constitutional References Committee has held inquiries into the regional processing centres. Other examples during the 45th Parliament include the inquiries of the Joint Standing Committee on Migration into the review processes associated with visa cancellations made on criminal grounds and migrant settlement outcomes.

Since the executive government is accountable to Parliament, it is supposed to cooperate with such inquiries but often does not. For example, the current government’s practice is to claim public interest immunity whenever Parliament asks it about so-called ‘on-water operations’.

As another example, the Parliamentary Joint Committee on Human Rights (PJCHR) has the task of examining Bills and legislative instruments which come before Parliament for compatibility with human rights and reporting to Parliament on its findings. To facilitate this, Bills and legislative instruments placed before Parliament must be accompanied by a statement that assesses whether the Bill or legislative instrument is compatible with the government’s human rights obligations. However, the statements thus far tabled have tended to make poorly justified assertions of human rights compatibility. The UN Human Rights Committee has expressed concern about the quality of the compatibility statements and also the fact that Bills are sometimes passed into law before the PJCHR has reported on them. Fortunately, parliamentary committees are able to draw on many more sources of information than the executive government. A committee holding an inquiry usually invites public submissions and has public hearings at which stakeholders and experts are invited to give evidence. The making of submissions and giving of evidence is covered by parliamentary privilege. Upon completing an inquiry, the committee in question reports on its findings and makes recommendations arising from those findings. For inquiries relating to refugee and asylum seeker matters in both the 44th and 45th Parliaments, what ended up happening in most cases was that the government members made one report while the non-government members made another report or reports disagreeing with the government members’ report.

The government is supposed to respond in the Senate to Senate and joint committee reports containing recommendations to it within three months of the report being tabled. It is supposed to respond in the House of Representatives to House of Representatives and joint committee reports within six months of the report being tabled. However, the government does not always bother to make a formal final response.

In any event, the findings and recommendations of parliamentary committees are not binding on Parliament or the executive government. As noted in the table above relating to the 44th and 45th Parliaments, only two relevant parliamentary committee reports received a formal final response from the government.

The formal final response to the Senate Legal and Constitutional Affairs References Committee report on the incident at the Manus Island Detention Centre stated that, as the matter was still the subject of judicial and other proceedings, it would be inappropriate to respond to the Committee’s recommendations ‘at this time’. The formal final response to the Select Committee report relating to Nauru sidestepped three out of 15 recommendations, rejected three, partially rejected another five on the basis that the matter was ultimately in the hands of the Nauruan government, and accepted four.

Twenty-seven of our key informants had interacted with parliamentary processes or parliamentarians in some way. The level of satisfaction with Parliament as an accountability mechanism varied greatly between informants. Eleven informants were slightly to extremely dissatisfied because they thought that the outcomes achieved were not commensurate with the amount of effort that went into engagement.

The main reason given for this was that most parliamentarians toed the party line, which in the case of the main political parties meant supporting policies adverse to refugees and people seeking asylum. In the words of one informant, ‘What we are not getting enough of are the politicians who have the courage of their convictions to stand up against the populism.’ Conversely, twelve informants were slightly to moderately satisfied either because they had taken heart from the sector’s success in securing passage of the Medevac Bill or because they engaged with parliamentary processes and parliamentarians not with the expectation of securing immediate and clear wins but with the hope of ameliorating losses and perhaps achieving positive change over the longer-term.

On 25 September 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill (Legacy Caseload Bill) was introduced into the House of Representatives by the government. Its purposes were the following:

    • To expand the government’s powers to detain and move vessels and people at sea.
    • To reintroduce a temporary protection regime for unauthorised arrivals.
    • To establish a statutory definition of ‘refugee’ that diverged from the international definition.
    • To establish a ‘fast track’ process for decision-making on protection visa applications made by members of the ‘legacy caseload’ of unauthorised maritime arrivals.
    • To expand the government’s power to remove people from Australia, including by empowering it to remove people regardless of whether it breached Australia’s international obligations of non-refoulement.

The sector mobilised to advocate against the Bill, including through making 241 submissions to a Senate Legal and Constitutional Affairs Legislation Committee inquiry which reported on 24 November 2014. The Committee recommended that the Bill be passed with amendments and the government was forced to make some concessions in order to get the Bill through the Senate. However, most of the provisions the Government wanted were passed by both Houses on 5 December 2014 and came into force on 16 December 2014 (the day after the Bill received royal assent). This was achieved by the agreement of key crossbenchers.

Briefing individual parliamentarians

Twenty of our key informants said that they had briefed individual parliamentarians. In some cases, they had done so as part of a lobbying trip to Canberra by a delegation of several organisations. For example, a delegation which included a community group, a legal group and an advocacy group went to Canberra in 2014 to lobby against the Legacy Caseload Bill (see case study above).

It is important to choose one’s bedfellows carefully in such situations. According to an informant from a service delivery organisation,

So it worked really well from that point of view of the groups coming together but the danger of going to a meeting with [named advocacy organisation] is that we were kicked out of some meetings saying ‘we are not going to meet with [named advocacy organisation] because it has a political agenda’.

A different strategy mentioned by some informants was division of labour between organisations. One informant said:

For example, [our organisation] has some contacts with people in the Coalition…. We also have connections with the Labor right faction in Sydney. So we’ll take the lead on dealing with those MPs and [another named organisation], for example, will deal with some Labor left MPs in Melbourne…So yeah we coordinated very closely with a number of organisations on specific issues and targeted specific individuals in the parties with the same message.

That informant added:

At the Labor Conference there were a number of payoffs…There was language [in the Platform adopted by Labor] that came from the sector. The debate around reassessment of people who were post IAA [Immigration Assessment Authority], the issue itself was something that the party was not aware of or not thinking about and it meant there was a real flashpoint in this issue area.

A couple of informants mentioned that they had facilitated people with lived experience communicating directly with parliamentarians. One said:

And being in some of those meetings, I think it’s been quite transforming for some of those MPs. It’s really interesting. I mean they already are concerned and sympathetic or some were [but] to have someone in front of you explaining what it’s like for them, it can be quite profound. Not for everyone [but] it can be for some people.

Several informants said that their strongest advocacy efforts were directed at parliamentarians because they were the decision-makers. (Some informants noted that it was useful to cultivate relationships with political staffers as a route to influencing parliamentarians.) When asked which parliamentarians in particular were targeted for advocacy, the usual response was those known to have an open mind on a particular issue, known to have an interest in, for example, issues relating to children where the issue in question is children in immigration detention, and/or known to be sympathetic in broad terms to refugees and people seeking asylum.

A common theme was the need to educate parliamentarians about either the basics or technicalities of an issue (depending on the parliamentarian) or about realities on the ground. For example, one informant said they briefed sympathetic government and non-government parliamentarians about what was happening on the ground on Manus Island whenever they returned from a trip there. They also briefed the parliamentarians on the impact on their clients of the fast track process. According to the informant, ‘You know we just assume that MPs know what fast track is, know what’s really happening on Manus; they don’t.’ Similarly, another informant had discovered that many sympathetic parliamentarians did not understand that that the Safe Haven Enterprise Visa was not going to provide a pathway to a permanent visa in most cases.

Non-government parliamentarians, in particular, may well lack necessary information. Not only do they have limited access to governmental information, they are also unlikely to have enough staff and other resources to research measures for themselves. One informant said that their organisation was proactively and frequently contacted by Labor and other non-government parliamentarians for briefings and advice.

Ensuring that parliamentarians are well-informed is necessary but not sufficient for achieving desired outcomes. Parliamentarians also need to be persuaded that what is being requested of them is politically feasible. One informant said they had learned over time that berating politicians for doing politics achieved nothing. Headway could only be made by acknowledging political constraints (e.g. ‘I understand you need to do what the party will decide’) and then helping and being helped by parliamentary allies to achieve the maximum possible within those constraints.

While they are unlikely to take public action inconsistent with their party’s position, sympathetic parliamentarians within the major political parties may provide useful intelligence on what issues are worth pursuing with their party and how best to do so, raise issues within the party themselves or work to change the party’s position behind the scenes.

An example given by one informant was of sympathetic Liberal parliamentarians raising issues related to SRSS within the party. The informant was part of a delegation which obtained a meeting with the Minister to discuss the issues and believed that it had come about because of internal pressure from within his party. The informant said:

So clearly you could see that there had been some effect even though it hasn’t ultimately got the outcome that we want. And you know even though the policy has been so horrible, I think you know it’s quite conceivable that it’s taken the edge off the very worst.

Another informant who worked for an organisation with a very large base of individual members leveraged that membership by mobilising them to meet with their local MP about particular issues:

So they know that there are people in their electorate who are interested in the issue and will make some noise about it. And that might trigger one of those politicians to then contact us saying ‘Hey, I had some of your activists come and visit me, can you send me more information’.

Yet another informant expressed the view that the political appetite to make change had increased as the public had become more sceptical of existing government policy. They said:

If you’d tried to get meetings with key ALP politicians on asylum or refugee policy a few years ago you’d get more noes than yeses; whereas now, if you go to Canberra, you’ll have [a] full day of meetings.

Using the Senate estimates process

Eighteen informants said that they had made use of the Senate estimates process to obtain information by getting sympathetic non-government Senators to ask the questions they wanted answered. Informants with more than one Senate contact divided their questions up between the contacts. RCOA uses every Senate estimates session as an opportunity to obtain information. When a session is coming up, it flags this during teleconferences etc and asks for suggestions for questions. Informants, who did not themselves have the necessary contacts, reported providing their questions to RCOA to pass on to its Senate contacts.

Not all contacts can be equally relied upon to ask the questions which have been provided to them in the form in which they have been provided—or at all. One informant reported that it was possible to increase the likelihood of their questions on a particular issue being asked by generating media interest in the issue beforehand.

While use of the Senate estimates process can procure information which would otherwise not be made publicly available, it is has become a less effective avenue recently than it has been in the past. In the case of sensitive issues, the supposed ‘answers’ now often sidestep the questions.

According to one informant: ‘Like before you could get such quality information; now they are coached or they are masters at giving little or no information.’ It is sometimes possible to avoid vague answers by asking specific and detailed questions.

However, officials can and do refuse to answer questions on the basis, for example, that it would be an unreasonable diversion of departmental resources to compile the answers or that doing so would breach confidentiality between governments or contracting parties. For example, when asked to provide the total number of people in community detention for the past three financial years, DHA replied that ‘[d]ue to the movement of clients in and out of community detention arrangements over this period, generating and quality assuring the data requested would represent an unreasonable diversion of resources.’ Instead, it referred to monthly snapshots which identify the numbers of people in community detention at a point in time.

Sometimes DHA refuses to answer questions that it has previously answered. For example, in 2019 it refused to provide the annualised cost of people in various categories of detention or living in the community, although it had provided the answer to the same question in a previous year.

Using the parliamentary inquiry process

Twenty-one of our key informants said they had made written submissions or given oral evidence to parliamentary inquiries. One informant had also facilitated a large number of immigration detainees making individual written submissions to an inquiry. Testimony by those with lived experience can be powerful. However, it does have the downside of exposing them to the risk of retribution, notwithstanding the theoretical protection of parliamentary privilege. It should also be kept in mind that parliamentary privilege cannot protect witnesses located outside Australia from actors who are not bound by Australian law.

Sometimes informal coordination of submissions has taken place, for example through the Kaldor Centre teleconference. In some cases, a single written submission will be made collectively by a group of similar agencies or a submission made by one agency will be endorsed by others. The advantages of this approach are the efficient use of sector resources and the delivery of a unified message. On the other hand, the making of individual submissions gives agencies more scope to put forward the details of their own knowledge and experience and it may also be the case that committees treat the volume of submissions as an indicator of the level of concern about a matter.

Inquiries often have tight timeframes and set deadlines for the making of written submissions that are almost impossible to meet. One informant was not convinced that committee members read written submissions in any event. They preferred giving oral evidence ‘where you can provide more examples and there is that interaction’. Oral evidence is also more likely to get media coverage. Unfortunately, most committee hearings are held in Canberra and many in the sector do not have the time or money to travel to Canberra for the purpose of giving evidence.

One advocacy organisation made submissions to parliamentary inquiries not because it thought that inquiry reports would lead directly to positive outcomes but because inquiries were an important opportunity to get information on the public record, force the government to respond to that information, and get media interest. Several informants expressed the view that simply getting information out into the public domain that otherwise would not be there was a valuable step towards eventual accountability.

One legal service provider always made submissions to inquiries into Bills before parliament because:

[our] submission would then be used by staffers/advisers, by minor parties and cross-benchers that then would contact [us] and ask for advice and briefings and amendments in the Senate and that sort of thing.

The same informant added that while the main inquiry report tended not to be useful, a dissenting report by Opposition parliamentarians had the potential to be a useful accountability tool if the Opposition subsequently came into power. Others made the same point, with one saying ‘at least we have [them] on the record as saying we support this as a recommendation’.

Recommendations

Government/Parliament

R13. In order to provide a realistic opportunity for participation, at least a month should be allowed for the making of written submissions to parliamentary inquiries.

R14. Parliamentary inquiries should be resourced at a level which makes it possible for them to hold hearings in more capital cities than just Canberra.

R15. Where a Bill is the subject of a parliamentary inquiry, it should not be passed prior to the tabling of the inquiry report.

R16. The government should make formal final responses to all recommendations contained in parliamentary inquiry reports and should do so within three months.

Sector R17. In order to make more efficient use of limited resources, the sector should consider intensifying collaboration with respect to lobbying parliamentarians, including through coordination of submissions to inquiries. The obvious vehicle for collaboration is RCOA.

R18. In order to make more effective use of the Senate estimates process, those who are not experienced in framing questions that elicit useful answers should consider collaborating with RCOA.

R19. In deciding whether to engage with a parliamentary inquiry, consideration should be given to the potential for indirect medium and long-term payoffs as well as the potential for direct short-term ones.

Sources and further reading

Mapping the Advocacy Capacity of the Refugee and Asylum Seeker Sector in Australia (Millwood Consulting)

President’s report to the Senate on the status of Government responses to Parliamentary Committee reports Offshore, out of reach? parliamentary oversight of Australia’s regional processing arrangements (C. J. Sautelle)

Senate StatsNet New

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