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

AHRC and Ombudsman

The AHRC is an independent statutory authority established under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). It is a function of the AHRC to ‘inquire into any act or practice that may be inconsistent with or contrary to any human right’ (AHRC Act s11(1)(f)).

Performance of the inquiry function may come about because the AHRC has received a complaint about an act or practice, or the Attorney-General has requested an inquiry, or the AHRC thinks an inquiry would be desirable (AHRC Act s20(1)). Until recently, the AHRC was required to report to the Attorney-General about an article 11(1)(f) inquiry, its findings and recommendations, and any remedial action being taken by the person to whom the findings and recommendations were notified.

In 2017 the AHRC Act was amended to make reporting on such inquiries by the AHRC to the Attorney-General discretionary and likewise to make the tabling by the Attorney-General in Parliament of any such report discretionary (AHRC Act s20A & s46). Fortunately, the President of the AHRC remains able to publish such reports as they see fit.

The AHRC >also make regular inspection visits to immigration detention facilities in Australia. Finally, the AHRC often works quietly and informally behind-the-scenes endeavouring to achieve positive human rights outcomes.

The Office of the Ombudsman is an independent statutory office established under the Ombudsman Act 1976 (Cth) (Ombudsman Act). The Ombudsman has the function of investigating administrative actions by government departments in response to complaints or of their own motion (Ombudsman Act s5). Where, after investigation, the Ombudsman is of the opinion that the administrative action or practice investigated is unlawful, unreasonable, unjust, oppressive, improperly discriminatory, or otherwise wrong, the Ombudsman must report accordingly to the department concerned and the relevant Minister. The Ombudsman may include in the report any recommendations they think fit. If, within a reasonable time of receiving the Ombudsman’s report, a department has not taken appropriate and adequate remedial action, the Ombudsman can advise the Prime Minister of this and can also present their investigation report to Parliament (Ombudsman Act s16 & s17).

Part C of the Migration Act 1958 (Cth) requires the Secretary of DHA to report on the circumstances of a person’s immigration detention to the Ombudsman once their detention period reaches two years, and at six-monthly intervals thereafter. As soon as practicable after receiving a report, the Ombudsman is required to assess the appropriateness of the detention arrangements and to provide that assessment to the Minister.

In 2016-17, a period of between seven and 12 months elapsed between the Ombudsman receiving the DHA report and the Ombudsman’s assessment being tabled in parliament in 43 per cent of cases. A period of more than 12 months elapsed in another 23 per cent of cases. The Ombudsman has acknowledged a year-on-year trend of decreasing timeliness attributing this to an increasing workload.

A detention assessment may include any recommendations the Ombudsman thinks fit. However, the Minister is not bound by the recommendations (Migration Act s486O(4)). The only thing that the Minister must do is table a modified version of each assessment in Parliament. On 10 April 2019, the Minister tabled 40 assessments of which 11 contained recommendations. In two cases the person concerned had already departed Australia, in three cases the recommendations were rejected, in three cases the recommendations were under consideration, and in the remaining three cases the recommendations were being implemented.

Finally, staff employed by the Ombudsman’s Office make inspection visits to immigration detention facilities in Australia and to the regional processing centres on a six-monthly cycle. On 21 December 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), though it claimed a three-year grace period for implementation of its obligations. Under OPCAT, Australia is obliged to designate one or more independent bodies as National Preventative Mechanisms (NPTs) with the power to visit places ‘where persons are or may be deprived of their liberty’ (arts 3 and 4). The Ombudsman has been designated the NPT responsible for undertaking inspections of Commonwealth places of detention. Once Australia’s grace period runs out, the Ombudsman’s inspections of immigration detention facilities will be in the capacity of the NPT. The Ombudsman has indicated that his Office is working with the AHRC to ensure that the inspections are ‘undertaken with an appropriate human rights emphasis’>/a>.

Twenty-three key informants had engaged with the AHRC in some way and 19 had engaged with the Ombudsman’s Office in some way. The general view was that both agencies are under-resourced for the work they are expected to do and neither has much influence with the Coalition government. In the case of the AHRC, the general view is supported by other evidence. In May 2016, the AHRC President testified at an estimates hearing that the Commission’s funding had ‘declined over many years’ and that it did not have the funding necessary to ‘properly meet our statutory obligations’. DHA formally rejected 8 of the 24 recommendations made in AHRC’s May 2019 Use of Force in Immigration Detention report, partially rejected another two, accepted three, and noted the remainder. It rejected 27 of the 31 recommendations made in the AHRC’s July 2019 Lives on Hold report, deflected three to another department and gave an ambiguous response to the remaining one.

The Ombudsman’s Office too has complained of inadequate funding at various times in the past and its current under-resourcing is evident from the decreasing timeliness of its detention review assessments. It may, however, have slightly more traction with DHA than AHRC. DHA accepted all of the recommendations made in the own motion investigation report released in 2018-19 and in the report released in 2017-18 and in two of the three reports released in 2016-17). On the other hand, it rejected the recommendations in the third report released in 2016-17.

Several informants expressed the view that both the AHRC’s and Ombudsman’s level of engagement with, and responsiveness to, refugee issues and the sector had varied over time. This reflected the background and attitudes of individuals in key roles, especially the roles of President and Ombudsman respectively.

At the present time, the AHRC is perceived as being less outspoken than under its immediate past President, Gillian Triggs, but as remaining more transparent, approachable and helpful than the Ombudsman’s Office. In relation to the latter, one informant commented: ‘When we’ve asked them about their [immigration detention facility] inspection methodology, the [Ombudsman’s Office] has been very defensive and dismissive of concerns. We have not found them easy to engage with.’ A number of other informants made similar comments with some naming Allan Asher, who was Ombudsman from August 2010 to October 2011, as the last Ombudsman who was interested in engagement with the sector and really active and outspoken on refugee issues.

Using the formal complaints processes

Only six key informants in relation to the AHRC and seven in relation to the Ombudsman indicated that they had assisted individuals to make formal complaints, beyond simply informing them of the existence of the complaints process. One of these informants had, in fact, encouraged individuals to make formal complaints to the Ombudsman on a particular issue as a way of getting the issue on the Ombudsman’s radar. At least 200 complaints were made as a result of which the Ombudsman launched an own motion investigation into the issue. However, the same informant and a couple of others noted that people seeking asylum were often reluctant to make formal complaints, because they felt vulnerable to retribution by the individual or organisation against whom the complaint was made.

A range of reasons were proffered by informants who said they did not assist individuals in the making of formal complaints or did so less now than in the past. Some of these reasons related to the informant’s own position; for example, their organisational mandate or resourcing constraints. However, other reasons related to the complaints process. In particular, they raised the length of time taken to resolve complaints and the fact that, even if a complaint is resolved in the complainant’s favour, the government is not required to implement the remedy recommended. One informant with several clients who had received AHRC findings in their favour said that the clients did get a sense of vindication from the findings but were frustrated that ‘they didn’t mean anything to their migration processes’. Other informants noted that, once told that the government did not have to listen to the AHRC or the Ombudsman, clients did not see any point in making a complaint in the first place.

According to its Annual Report, in 2018-19 the AHRC resolved 98 per cent of complaints within 12 months of receipt (exceeding its target of resolving 85 per cent within that timespan). The most recent annual report to provide more detail than this was the one for 2014-15. The AHRC reported that, in that period, 99 per cent of complaints were resolved within 12 months of receipt with the average time between receipt and resolution being 3.7 months.

The Ombudsman’s Office sets itself service standards for resolving complaints ranging from three business days to 12 months depending on the amount of work required for finalisation. In 2018-19, it met these standards in 89 per cent of cases.

Neither the AHRC nor the Ombudsman’s Office publish breakdowns by government department of the time taken to resolve complaints. However, in its Annual Report 2014-15, the Ombudsman’s Office complained about the time it took for the then Department of Immigration to respond to its investigation of complaints with most responses being made outside the 28 day agreed time frame and 10 per cent of responses taking more than 60 days. There is also some evidence of the Department hindering the AHRC’s progress in complaint investigation through delaying tactics and the like.

Unfortunately, it is not possible on the basis of the publicly available evidence to compile statistics on what proportion of recommendations made by either agency to provide a remedy to complainants are actually accepted by the government.

Providing information to the AHRC and/or the Ombudsman

The AHRC has conducted several own motion inquiries into issues relevant to the situation of people seeking asylum and refugees in some way and has solicited public submissions as part of the inquiry process. Understandably there have been more submissions from the refugee sector where an inquiry has related to issues of special relevance to the situation of refugees or people seeking asylum than where it has related to broader issues which may also affect them. The AHRC has also been proactive in engaging with the refugee sector. It has held stakeholder consultations itself and the Specialist Adviser – Immigration has regularly attended refugee sector meetings in order to keep in touch with issues arising on the ground and to raise awareness about the AHRC’s functions.

The Ombudsman has conducted several own motion investigations into issues of relevance to the situation of people seeking asylum and refugees. In addition, the Ombudsman’s Office has invited refugee sector actors to stakeholder consultations and its staff have attended refugee sector meetings to which they have been invited, but, in recent times at least, the Office has engaged less with the sector than the AHRC.

Seventeen key informants in relation to the AHRC and 10 in relation to the Ombudsman’s Office indicated that they had provided information to the agency about individual cases or systemic issues through the above-mentioned channels or by contacting a known member of the agency’s staff directly.

One informant explained that, because of the vulnerability of people seeking asylum to retribution for formal complaints, passing information about individual cases to the AHRC or the Ombudsman’s Office informally was a better strategy than encouraging the making of a formal complaint. For example: We understand that [your agency] is going to be visiting Villawood [Immigration Detention Centre]. Here are three guys [who have] raised interesting complaints with us. You might want to talk to them during your visit.

The agency approached depended on the issue (given the differing mandates of the agencies) and, in some cases, the timing. For example: If we know that the Human Rights Commission won’t be going back to Yongah Hill [Immigration Detention Centre] for another 12 months, well it’s pointless really raising it with them, if we know the Ombudsman’s team is going to go there in the next four weeks.

Other informants reported using the same strategy of providing information informally. However, informants noted that they were rarely told what action, if any, AHRC or the Ombudsman’s Office had taken in response to the information they had provided, with the Ombudsman’s Office being even less communicative than the AHRC.

Even where the AHRC or the Ombudsman’s Office is known to have intervened in a situation, it is often hard to be sure to what degree any improvement was the result of such intervention as opposed to other factors. For example, one service provider who had liaised closely with the AHRC in relation to the cases of child clients at risk of being transferred to Nauru said: Look, it is hard to say whether it was [the then President of the AHRC’s] intervention or a combination of her plus UNHCR plus the person in the Department who was agitating as well as much as she could. But the combination of the three certainly resulted in a number of children not being sent to Nauru.

Another informant commented that:

[a former Ombudsman] has taken credit for achieving release from detention where all other avenues had ‘failed’ to yield results without recognising that the context in which release had been negotiated was widespread national and international condemnation of Australia’s mandatory detention policy.

Using information made available by the AHRC and/or the Ombudsman’s Office

On its website, the AHRC publishes reports on its own motion inquiries, immigration detention facility inspection visits and resolution of individual complaints. It also publishes inquiry-related material such as any public submissions made. Finally, it publishes media statements, fact sheets and other material for the purpose of making clear its views on topical human rights issues and/or educating the public at large about those issues.

On its website, the Ombudsman’s Office publishes own motion investigation reports and deidentified detention review assessment reports as well as media statements, fact sheets and the like. However, it does not publish reports on its immigration detention facility inspection visits or its resolution of individual complaints.

Eighteen key informants indicated that they had used information made available by the AHRC on its website and through other channels (e.g. stakeholder consultations) in their individual client work, policy work and/or advocacy work and 13 key informants indicated the same in relation to information made available by the Ombudsman’s Office.

The reports published by the AHRC were highly regarded, with one informant saying: They are careful in their research…They’ve done an inquiry and come up with this and it’s probably worth citing. Whereas there are other groups where you might say ‘I’d like to verify that before even citing them.’ This high regard is also reflected in evaluation studies of AHRC’s research reports.

One factor which makes AHRC’s reports less useful to the sector than they would otherwise be is lack of timely publication. For example, the report on the inspections of detention facilities which the AHRC conducted in the latter part of 2018 was only published on 18 June 2019. The main reason for lack of timeliness is that, where the AHRC makes adverse findings, it is required to give those against whom the findings have been made a reasonable opportunity to respond before proceeding to publication. DHA tends to drag its feet on providing responses and the AHRC has thus far indulged it in an attempt to maintain the working relationship.

Several informants noted that the Ombudsman’s detention review assessment reports had been particularly useful in the past. For example, one legal service provider used to find the detention review assessment reports relating to their clients to be of great use in litigating on behalf of those clients because they contained more information than the client could actually provide about their situation and also carried weight as the objective findings of a government agency. That informant and others also mentioned that they had used the assessment reports when seeking ministerial intervention on behalf of their clients though they were not convinced that the reports carried any weight with the Minister.

However, these informants all noted that in recent times even the version provided to the person whose detention was being reviewed had become too cursory to be of any use. This is borne out by other evidence. In 2018, the Ombudsman’s Office wrote to long-term detainees informing them that, commencing in July of that year, it was no longer providing individuals with detailed reports of their circumstances in detention but instead was sending to the Minister a letter that raised any broad concerns, a schedule of the individuals who had been assessed, and any recommendations that the Office deemed appropriate. The reason for this ‘streamlining’ appears to be resourcing constraints.

Recommendations

Sector

R20. The sector should consider using the AHRC as an avenue to address the impact on refugees and people seeking asylum of human rights violations which are not specific to that cohort (e.g. sexual harassment in the workplace).

Also see recommendations in Part I.

AHRC/Ombudsman’s Office R21. The AHRC and the Ombudsman’s Office should update individuals and organisations providing information about the actions taken in response to ensure that informal information-sharing continues.

R22. In order to assist the public in assessing the responsiveness of government departments, the AHRC and the Ombudsman’s Office should publish statistics on the implementation of their recommendations by department.

R23. The Ombudsman’s Office should publish reports on its immigration detention facility visits.

R24. The Ombudsman’s Office should return to the practice of providing immigration detainees with detailed and individualised detention review assessment reports.

Also see recommendations in Part I.

Government/Parliament

R25. The AHRC and the Ombudsman’s Office should be funded to a level that enables them to meet their statutory obligations in a timely manner.

R26. In order to give them an incentive to implement recommendations made by the AHRC and the Ombudsman, government departments should be required to include information in their annual reports about their acceptance/rejection/implementation of those recommendations.

Sources Australian Human Rights Commission Act 1986

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