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The use of non-judicial accountability mechanisms by the refugee sector in Australia

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Associate Professor Savitri Taylor and Dr Joyce Chia

Executive Summary

How can we keep the executive accountable? This is the great democratic question of our times. It is a question with special force when it comes to the protection of minorities in an age where populism is increasingly conflated with a virulent brand of nationalism.

This report presents a study of one of the most contested areas of public policy in Australia, refugee policy, during one of its worst periods. It is a study of how the refugee sector has engaged with a suite of mechanisms established to keep the executive accountable, of how that engagement can be improved and made more effective, and of how those mechanisms themselves have performed. These mechanisms are designed specifically to keep the executive accountable, but are not judicial in nature, so are referred to as ‘non-judicial accountability mechanisms’.

The non-judicial accountability mechanisms have been important in keeping the executive accountable throughout these dark years of refugee policy. They have produced key reports and provided important information that the government has not wanted in the public sphere. They have produced outcomes for individuals behind the scenes, and provided avenues to influence the government. Yet, as this report shows, they have been, and are being, tested.

The report performs several functions. First, it provides a detailed account of the engagement of the refugee sector with such mechanisms. It provides a qualitative study, drawing on interviews with key informants from the refugee sector across Australia. The authors would like to express their deep gratitude to these informants for taking precious time in their hectic schedules to participate in this study.

Together, these informants bring different perspectives and collectively decades of experience in engaging with these mechanisms. This account therefore provides a unique empirical record of the use of non-judicial accountability mechanisms.

Second, it provides practical recommendations for improving this engagement, and the effectiveness of such engagement. These recommendations include recommendations for the peak national body, the Refugee Council of Australia, which has partnered this study, and also for other non-governmental organisations, the mechanisms themselves, and for government.

The focus of these recommendations are:

• better training, support and collaboration within the sector

• institutional measures within the mechanisms to improve their engagement with the sector

• reforms to improve the effectiveness of these mechanisms.

Third, the report identifies the constraints and the limits of non-judicial accountability mechanisms. The effectiveness of such mechanisms depends on certain preconditions. These include awareness of such mechanisms, their accessibility, and the capacity (including time and support) to use these mechanisms. It also depends on the capacity of these mechanisms to work effectively, including through their institutional mandates, resourcing, and their relationships with the sector and with government.

Most importantly, these mechanisms ultimately rely upon the receptiveness of a government to consider their recommendations, and a recognition of the value and need for accountability. The report identifies ways in which accountability has been delayed, frustrated, and denied in the past years. The forms of democratic accountability exist, but the norms upon which they rest are eroding.