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The
role of Human Rights in Good Governance

By The Hon. John von Doussa QC, President, Human Rights and Equal Opportunity Commission

23 November 2006

DIMA
SES Lunch

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INTRODUCTION

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
ROLE OF HUMAN RIGHTS IN GOOD GOVERNANCE

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.[1] 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. [2]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’.[3]

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.[4]

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’.[5]

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.

For
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.[6] 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’.[7]

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. [8]

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.[9] 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’.[10]

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’.[11]

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.

Ministerial
Discretion

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’.[12]

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.

 

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[1] Joint Standing Committee Report, 12 [para 2.11] quoting UNDP, Governance
for Sustainable Human
Development, a UNDP
Policy Document.

[2] 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’.

[3] Joint Standing Committee Report, 13 [para 2.16] quoting United Nations
High Commissioner for Human Rights, What is Good Governance? (2002).

[4] Commonwealth Ombudsman, Inquiry into the
Circumstances of the Vivan Alveraz Matters, Report no. 3, 2005, p31

[5] Ibid.

[6] ABC News Online, ‘Immigration Head defends Christmas Island detainee
monitoring’, 17 November 2006.

[7] Commonwealth Ombudsman, Annual Report
2005-2006, p.85

[8] 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.

[9] 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]

[10] 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/

[11] http://www.unhcr.org.au/newsreleases.shtml

[12] The Hon. Justice McHugh, ‘The Need for Agitators – the Risk of
Stagnation’, address delivered to Sydney University Law Society Public
Forum, 12 October 2005.