The role of Human Rights in Good Governance
By The Hon. John von Doussa QC, President, Human Rights and Equal Opportunity Commission
23 November 2006DIMA SES Lunch
I would like to acknowledge the Ngunnawal people, the traditional owners of the land on which we meet today, and pay my respects to their elders.
The topic for discussion is the role of human rights in good governance. Along the way I will touch on HREOC’s perceptions of cultural change at DIMA, legal roadblocks to cultural change, and the importance of human rights principles in the law and policy making process.
In canvassing a possible topic for today with the organiser of this event I was asked specifically to address the importance of stakeholder relationships in promoting good governance.
At the outset I think I need to spend a moment on defining the concepts of “stakeholders”, “human rights”, and “good governance”.
DIMA defines its key stakeholders to be its Minister, the Government, staff, central agencies, key critics and agencies that scrutinise the Department, and more broadly, the community at large to which all organs of government are ultimately accountable. Good relationships with external stakeholders depend on DIMA’s willingness to listen – and respond – to these stakeholders concerns about human rights issues. Good relationships lead to a good reputation - a topic to which I will return.
Human rights is a shorthand description for well developed and well documented international norms that are articulated broadly in the Universal Declaration of Human Rights, and in specific detail in the major international Conventions to which Australia is a party.
Human rights are not nebulous optional pleasantries to be applied only when it suits. They are basic minimum standards that Australia, by ratifying the Conventions, has agreed to provide to all people –including non-citizens – within its territory and subject to its jurisdiction.
These international standards include Article 9 of the ICCPR which prohibits arbitrary detention and Article 10 of the ICCPR which protects the right of a person deprived of his or her liberty to be treated with humanity and with respect for their inherent dignity.
And of course, there are the Refugee Conventions which establish a sophisticated set of principles carefully designed to protect the human rights of refugees and asylum seekers.
“Governance” and “good governance” are also concepts which require a moment’s reflection. Governance is generally defined as the exercise of power or authority – political, economic or administrative to manage a country’s affairs at all levels. The definition of governance does not express a role for human rights. Indeed, governance can be economically efficient and yet fail the very people it seeks to service.
In this sense one casualty of poor governance is human rights. One defining characteristic of good governance is human rights compliance. This characteristic is essential to build good relationships and in turn a good reputation.
It is in this vein that the United Nations High Commission for Human Rights defines good governance as ‘the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights. The true test advanced for "good" governance is the degree to which it delivers on the promise of human rights: encompassing civil, cultural, economic, political and social rights’.
GOOD GOVERNANCE AT A DEPARTMENTAL LEVEL
Last year the Palmer Report into the wrongful detention of Cornelia Rau and the Comrie Report into the wrongful removal of Vivian Alveraz illustrated the fact that a casualty of poor governance is people’s rights.
The Palmer report recommended urgent reform to address the ‘serious cultural problem within DIMIA’s immigration and compliance areas’. The Comrie Report found that:
the culture of DIMIA was so motivated by imperatives associated with the removal of unlawful non-citizens that officers failed to take into account the basic human rights obligations that characterise a democratic society.
Both reports exposed the triumph of process over people. The Comrie Report observed ‘for some DIMIA officers, removing suspected unlawful non-citizens has become a dehumanised, mechanical process’.
THE CHANGING CULTURE AT DIMA
Post Palmer Reforms
The findings of the Palmer Report and Comrie Report have been a catalyst for rigorous reforms at DIMA (as the Department now is). Under Mr Andrew Metcalfe’s stewardship I believe DIMA has made great strides towards creating a more open and accountable organisation.
The Palmer Plus Package has introduced valuable new initiatives including:
- upgrading immigration detention infrastructure;
- stronger stakeholder engagement;
- and a new College of Immigration.
a Department charged with the administration of Immigration Detention Centres
complying with Article 10 of the ICCPR – which provides for the human
treatment of all people deprived of their liberty - is a crucial challenge.
All DIMA officers need to be aware of their human rights obligations to their clients. One of the outcomes of the Palmer Report is greater efforts invested by DIMA in educating staff about the importance of human rights compliance in immigration detention and border management. It is pleasing to see that the new College of Immigration Law offers courses on Australia’s human rights obligations.
Stake holder Engagement
Human Rights compliance depends on DIMA staff having a strong understanding of how to protect human rights and rigorous human rights monitoring. To effectively monitor human rights compliance there must be processes of internal and external scrutiny. Currently DIMA is subject to external scrutiny from the Commonwealth Ombudsman and HREOC, and at times in a more public way than by Parliament or the courts.
As Mr Metcalfe recently observed, HREOC has never been backward about coming forward when we have human rights concerns about the treatment of people in Immigration Detention. Yet until recently DIMA’s response to HREOC’s concerns about the treatment of detainees was defensive and hostile.
Key indicators of good governance are participation and accountability. A clear objective of DIMA’s changed management strategy has been to pursue these objectives by seeking greater involvement with key external stakeholders, including HREOC.
For HREOC this new emphasis on stakeholder engagement has changed our relationship with DIMA. HREOC’s officers have clear channels of communication with DIMA officers. Where once HREOC read about issues at DIMA in the news papers or in our complaint files there is now candour, openness and a willingness to initiate action.
We now have the opportunity to provide input and feedback on DIMA’s new policies and proposals. This new consultative approach is a welcome step towards achieving better human rights outcomes for DIMA’s clients. However, some HREOC officers have commented that consultation is not just a one step process. Asking what stakeholders’ concerns are is but the first step. Explaining what actions are being taken to address those concerns is a necessary second step.
Sometimes – not always – the second step in the consultation process seems to slide off the radar. There have been instances where HREOC has responded to a request from DIMA for comment on proposed remedial action; HREOC has been informed it would be kept informed of progress; but this friendly assurance has not been fulfilled.
DIMA’s response to complaints to HREOC
One of the obvious effects of the culture change at DIMA has been a more conciliatory approach to the resolution of complaints made under HREOC’s legislation. Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I can inquire into complaints that allege that an act or practice by or behalf of the Commonwealth is inconsistent with human rights.
Historically HREOC’s recommendations to DIMA in complaints matters have fell on deaf ears; more recently there has been a willingness to admit mistakes and, most importantly, compensate the victims of these mistakes. Where HREOC has found that there has been a breach of Human Rights DIMA’s responses have illustrated a desire to address policy problems and provide appropriate compensation to the complainant.
For example, in a recent report on a complaint by Ms CD I found that the Commonwealth had failed to provide her with a safe place of detention which ensured her humane treatment.
The basis of this finding was the fact that the Commonwealth continued to accommodate Ms CD in the Charlie Compound of the Curtin Immigration and Reception Processing Centre after being informed of her complaints that she was being harassed by other detainees. Ms CD and her daughter were the only females detained in Charlie Compound among a large group of male detainees. They were also members of a religious minority amongst the larger group.
I recommended that the Commonwealth pay Ms CD compensation of $15,000. I also made a range of recommendations about the management of immigration detention centres including a recommendation that detainees should not be accommodated with groups who are related to the detainee’s claims of persecution.
In response to the report, DIMA indicated HREOC’s recommendations would be taken into consideration in developing their new client placement model and agreed to pay the recommended compensation. This newfound willingness to redress wrongs illustrates a real commitment to the principles of fairness and accountability.
Visits to Immigration Detention Centres
Another area where HREOC has had an opportunity to observe the changing culture of DIMA has been in our visits to immigration detention centres. Overall, HREOC has observed there has been a positive change in attitude towards the treatment of detainees. In most centres there have been concerted efforts to improve recreation programs. Despite improvements, the problem of long-term detention persists and HREOC considers greater efforts are still need to transfer detainees into alternative detention, release detainees on bridging visas or provide residence determinations.
THE LEGAL ROAD BLOCKS TO CULTURAL CHANGE
From HREOC’s perspective the culture change at DIMA is profound. But in our view the scope for cultural change which is necessary to truly establish good governance is fundamentally constricted by the legal framework in which DIMA operates.
The Palmer and Comrie reports painted a picture of a culture which had a lot of time for process but little time for people; a culture which was closed, inaccessible and loath to open its doors to external scrutiny.
Unfortunately, despite the dramatic changes in DIMA’s culture, aspects of the old culture are still preserved by some provisions of the Migration Act 1958 (Cth).
Access to Legal Advice
Let me provide some examples, before I offer a view on what a human rights approach requires of DIMA.
A key objective of DIMA’s response to the Palmer Report is to make sure that the department has ‘fair and reasonable’ dealings with DIMA’s clients. In a directive to staff in April 2006, Mr Metcalfe said that ‘being fair and reasonable in DIMA’ involved providing clients with accurate, consistent and relevant information about DIMA’s processes; a clear view of next steps; remaining requirements and likely timeframes’.
These are undoubtedly important objectives. Yet under the Migration Act the onus is still on unauthorised arrivals to raise protection claims and request legal advice. The Migration Act makes it clear that DIMA officers have no obligations to advise unauthorised arrivals of their options unless a detainee explicitly asks for legal advice. 
In HREOC’s view this situation fails to comply with Australia’s human rights obligations. Article 9.4 of the International Covenant on Civil and Political Rights (ICCPR) requires that all detainees have an opportunity to challenge their detention in a court of law. Article 14.1 requires the court to be "competent, independent and impartial" and the hearing to be "fair and public". 'Fairness' must at least require that the individual have an opportunity to present his or her case effectively by reference to Australian law and in accordance with Australian procedures.
For unauthorised arrivals with little or no understanding of Australia's Migration Act and, typically, very little English language comprehension, effective presentation requires the assistance of an independent advocate with expertise in migration and refugee law. In other words, compliance with ICCPR articles 9.4 and 14.1 requires that detainees have ready access to independent legal advice and assistance.
Numerous parliamentary committee have emphasised the fact that ‘every effort’ must be made to make sure asylum seekers understand their legal rights and obligations and the basis on which their claims for asylum will be accepted or rejected. A legislative change that makes it clear that detainees must be advised of their rights to access lawyers, and that lawyers must have ready access to detainees, would not only be fair and reasonable, it would bring Australia in line its human rights obligations.
Temporary Protections Visas
The Temporary Protection Visa (TPV) regime is another example of a culture that values process over people.
The High Court’s recent decisions in the cases of QAAH and NBGM confirm the uncertainty facing refugees holding temporary protection visas and highlight the need for Australia to change its policy towards refugees living in Australia.
I understand that there are up to 2000 people on TPVs temporary protection visas. The High Court ruling confirms that under the Temporary Protection Visa scheme the onus rests on refugees to prove more than once, perhaps more than twice, that they face a risk of ongoing persecution in the country of origin.
Australia’s obligations under the Refugee Convention provide that Australia must ‘as far as possible, facilitate the assimilation and naturalisation of refugees’. The temporary nature of TPVs is anathema to this objective. In the Commission’s National Inquiry into Children into immigration detention one child said that being on a TPV was like having a brain tumour ... ‘you know you are going to die after three years’.
The vulnerability of refugees who flee circumstances of trauma and torture and face months, and sometimes years of uncertainty, while their claims for refugee status are assessed is obvious.
In the course of one lifetime circumstances in a refugee’s country of origin will change many times. The reality is that at one point in time a decision must be made about whether that person is entitled to permanent protection. Delaying this ultimate decision for years is cruel, especially when the vast majority of such people are ultimately granted permanent residence.
In a statement released after the High Court’s judgment the UNHCR said it was concerned that while the judgments in QAAH and NGBM asserted the primacy of domestic legislation, they fail to ‘reflect the spirit of the legal framework for refugee protection envisaged in the 1951 Convention relating to the Status of Refugees’.
Australia’s international reputation is judged in significant measure on whether it meets the international commitments it has made by ratifying relevant Conventions. Good human rights outcomes depend on more than technical compliance with specific terms of human rights conventions, and much more than hiding behind domestic legislation that does not reflect international obligations. Good human rights outcomes depend on a willingness to act in a way that is consistent with the overall scheme and objectives of the conventions.
The final feature of the operation of the Migration Act that I would like to draw attention to is the operation of ministerial discretion. In recent speeches Mr Metcalfe has emphasised the importance of making sure DIMA’s decisions are ‘fair, reasonable, transparent, well supported by evidence, properly recorded and also lead to improved outcomes’.
These admirable objectives are undermined by the current reliance on Ministerial discretion to protect asylum seekers who may not fall within the definition of refugee in the Refugee Convention but may be eligible for protection under the Convention Against Torture, the International Covenant of Civil and Political Rights or the Convention on the Rights of the Child.
Ministerial discretion is non-compellable, non-delegable and non-reviewable. It lacks the basic features of accountable and transparent decision making. While ministerial discretion is an important safety valve, in the interests of fairness, accountability and transparency Australia should be taking positive action to explicitly ensure that it complies with its obligations not to refoule ICCPR/CRC/CAT asylum seekers.
Statutory provisions that are inconsistent with the letter or the spirit of Australia’s international human rights obligations undermine DIMA’s efforts to create a culture of fairness.
This brings me to consider the role of government departments in policy and law making.
I am not so naïve that I do not recognise that some laws are drafted in terms directed by Cabinet, not by departmental officers. Yet the power of the officers – with all their expertise – is not to be discounted. With new laws they retain a unique opportunity to see proposed legislation before bills are introduced. With existing legislation they have access to their Minister that is not available to others. They have the opportunity – and in a department committed to good governance an obligation - to analyse the human rights compatibility of legislative measures, and to bring any infringements to the attention of the law makers.
HUMAN RIGHTS IN GOOD GOVERNANCE
When the High Court confirmed the legality of the indefinite detention of a failed asylum seeker, Justice McHugh commented on the ‘inability of Australian judges to prevent unjust human rights outcomes in the face of federal legislation that is unambiguous in its intent and falls within a constitutional head of power’.
Such statements are fuelling a debate about the need for a Bill of Rights. Whether you view a Bill of Rights as a nightmare or a fantasy, the blunt fact is that a Bill of Rights which empowers the courts to declare legislation incompatible with human rights has no prospects in the real world of Australian federal politics.
Yet there is one aspect of ACT and Victorian Charters that has nothing to do with giving more power to the courts power and everything to do with good governance. This process requires:
- submissions to Cabinet about new laws or policies to be accompanied by a Human Rights Impact Statement;
- new Bills to be accompanied by a human rights compatibility statement;
- parliament to justify its actions if it decides to pass laws which are inconsistent with human rights principles.
This process imposes a human rights audit on the law and policy making process.
Even in the absence of a statute which compels the legislature and the executive to consider the human rights compatibility of new laws and policies, good governance demands that departments pay attention to the human rights impact of new laws and policies. This human rights audit also needs to be applied to all existing legislation, and the shortcomings brought to the attention of the Minister with proposals for change.
As leaders of your department you all have a responsibility to create a staff culture which understands and respects human rights.
Human rights compliance is not about adhering to abstract academic principles. Human rights compliance is about everyday practice. It is about the attitudes of DIMA staff to people in Immigration detention. It is about the commitment of DIMA to educating its staff about how to comply with Australia’s human rights obligations on a day to day level in so far as the law presently allows. And where the law does not allow, the obstacle needs to be identified and new human rights compliant policy developed and promoted to the Minister.
I recognise and respect the great strides that DIMA has made towards creating a culture which does respect human rights. I hope in time the cultural change leads to legislative change.
 Joint Standing Committee Report, 12 [para 2.11] quoting UNDP, Governance for Sustainable Human Development, a UNDP Policy Document.
 A High Court Justice put it this way: ‘technocratic excellence is important but it is insufficient. Human rights constitute the sap that gives life to the tree of good governance’. See The Hon Justice Michael Kirby AC CMG, "Human Rights - Essential for Good Governance", Seminar on Good Governance for the Protection of Human Rights held in Seoul, Republic of Korea, 15 September 2004. Electronic copy available at: www.sandstonepress.net/olr/OLR_sample.pdf; See also DFAT, Advancing the National Interest, Canberra, 2003, Chapter 10, ‘Promoting good governance, human rights and development’.
 Joint Standing Committee Report, 13 [para 2.16] quoting United Nations High Commissioner for Human Rights, What is Good Governance? (2002).
 Commonwealth Ombudsman, Inquiry into the Circumstances of the Vivan Alveraz Matters, Report no. 3, 2005, p31
 ABC News Online, ‘Immigration Head defends Christmas Island detainee monitoring’, 17 November 2006.
 Commonwealth Ombudsman, Annual Report 2005-2006, p.85
 See Migration Act 1958 (cth), s 193, s256. While section 256 provides for all reasonable facilities for legal advice are to be provided to a detainee in relation to his or her immigration detention, such facilities will only be provided after the detainee makes a request for assistance.
 See Senate Legal and Constitutional References Committee, Report on the Inquiry into the Operation and Administration of the Migration Act 1958, March 2006, para [2.218-2.221]
 Human Rights and Equal Opportunity Commission (2004) A Last Resort? National Inquiry into Children in Immigration Detention. Available at http://www.hreoc.gov.au/human_rights/children_detention_report/
 The Hon. Justice McHugh, ‘The Need for Agitators – the Risk of Stagnation’, address delivered to Sydney University Law Society Public Forum, 12 October 2005.