Offshore processing and the Australian Human Rights Commission – jurisdictional limitation or political convenience?

By Michael Simmons

Since Australia’s asylum seeker processing centres in Nauru and PNG were reopened 18 months ago, the President of the Australian Human Rights Commission (AHRC), Gillian Triggs, has repeatedly requested to have access to detainees.

Concern regarding the conditions in the centres and the lack of independent oversight has drawn Triggs into a number of terse exchanges with Minister for Immigration Scott Morrison, most recently during the fourth hearing of the Commission’s National Inquiry into Children in Immigration Detention. Mr Morrison and the Commonwealth Government maintain the AHRC’s powers do not extend to the processing centres. The Solicitor-General has advised that the Australian Human Rights Commission Act 1986 (Cth) (“The Act”), does not bestow jurisdiction for the AHRC to act outside of Australia. While the Commission may receive and inquire into complaints received from asylum seekers detained offshore, as has occurred during the current inquiry, it is not permitted to visit them.

This view is irreconcilable with the terms of the contract between the now former Manus Island service provider G4S and the Commonwealth Government, which expressly states that the AHRC must be given access to the centre. This would indicate that either the Solicitor-General, or the legal advisors responsible for negotiating the G4S contract, are mistaken as to the AHRC’s offshore jurisdiction.

“Ambiguity clearly persists as to what extent our national human rights institution
is permitted to carry out its functions abroad.”

Of course this is not this first time Australia has detained asylum seekers in a foreign jurisdiction with minimal transparency and independent oversight. In 2004 during the first incarnation of the Pacific Solution, the AHRC requested permission to inspect the facilities on Nauru and Manus Island as part of its first inquiry into children in immigration detention.

But the then Department of Immigration and Multicultural and Indigenous Affairs “reiterated its position that the HREOC Act [as the AHRC Act was then known] did not have extra-territorial effect and declined to assist the Inquiry with these visits”. Although the AHRC obtained a legal opinion from a senior barrister that this view was legally incorrect, after considerable effort it determined that it would not be an appropriate use of resources to pursue the matter further.

It is accepted as a matter of law that a number of Australia’s human rights obligations extend beyond our national borders. However, ambiguity clearly persists as to what extent our national human rights institution is permitted to carry out its functions abroad. While it may be politically convenient to deny the AHRC access to the offshore processing centres, there is no apparent legal justification. Rather the AHRC Act provides numerous grounds supporting the President’s requests for being permitted to access the offshore centres.

The AHRC has a duty to ensure that in performing its functions it has regard for the indivisible, universal nature of human rights and the principle that every person is free and equal in dignity and rights (AHRC Act section 10A(1)). Thus, the Commission is obliged not to view human rights exclusively within the Australian context.

The AHRC has the power to receive complaints in relation to an act or practice that may be contrary to certain human rights, as provided for in international agreements including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child (AHRC Act section 20(1)). The Act (at section 3(4)) clarifies that the term “human rights” means human rights as they apply to Australia. This can account for any limitations made by Australia as a condition of ratifying an international agreement and variations arising from the Australia legislation, which gives effect to our international obligations.

However, giving powers to the AHRC in relation to human rights as they apply to Australia is vastly different to conveying oversight for human rights matters only as they apply in Australia. International human rights law and the law of state responsibly have affirmed that Australia’s human rights obligations extend beyond our territorial borders. A number of the rights that the AHRC is specifically empowered to protect under its complaints jurisdiction are at risk of being violated by Australia’s offshore processing practices, which of itself should warrant the Commission being granted access to the centres.

There is no express geographic limitation on the performance of AHRC functions contained in the Act. Given the expansive nature of the Commission’s enshrined powers, it would be hard to imply that such a limitation was intended but yet omitted from the legislation. To ensure its independence and its effectiveness, the AHRC is expressly invested with the power to do all things that are necessary or convenient (AHRC Act s13(1)), and anything incidental or conducive to the performance of any of its functions (AHRC Act s 11(1)(p)).

Amongst the many functions of the AHRC is the ability to inquire into any act or practice that may be inconsistent with or contrary to any human right, as it deems necessary (AHRC Act s 11(1)(f)). Furthermore, when carrying out its functions, the Commission may make an examination or hold an inquiry in any such manner as it thinks fit (AHRC Act s 14(1)). The only caveat being that inquiries cannot be made into the conduct of certain intelligence organisations (AHRC Act s 11(3)).

“It is concerning that the government has sought to restrict the AHRC in the legitimate exercise of its functions
without a clear legislative basis for doing so.”

The Government’s consistent efforts to stymie the AHRC has potentially broad ramifications and should be a matter of concern not just for the asylum seekers who are being held without independent human rights oversight. The Principles relating to the Status of National Institutions, known as the “Paris Principles”, were adopted by the United Nations General Assembly in 1993. They constitute the touchstone attributes that a national human rights institution should posses to be effective and to be considered legitimate. These principles include inter alia, a clearly defined broad mandate based on universal human rights standards, autonomy from government, and independence guaranteed by legislation.

Denying the AHRC access to Australia’s offshore processing centers raises serious concerns as to compliance with a number of these principles and by extension, the Commission’s overall effectiveness and legitimacy.

The AHRC is a role model for a number of fledging national human rights institutions in the Asia-Pacific and has actively partnered with a number of organisations to assist with capacity building. The Australian Government funds a number of foreign aid programs to encourage other national human rights institutions to strive to be as Paris Principle compliant as possible.

It is concerning that the government has sought to restrict the AHRC in the legitimate exercise of its functions without a clear legislative basis for doing so. It is also troubling that the rationale for denying the AHRC access to PNG and Nauru has not been publicly disclosed.

For the AHRC to be considered credible, it must be both actually autonomous from the government and perceived to be independent. If the public view the AHRC is acting within the realm of what the government of the day deems to be appropriate, its legitimacy will be significantly diminished and thus its ability to successfully perform its functions will be greatly reduced.

The AHRC slogan is “Human Rights: Everyone, Everywhere, Everyday”. The Government, whilst maintaining the Commission’s powers are limited to Australia, has entered into contracts that expressly acknowledge the opposite.

It is entirely unsatisfactory for the independence of the Commission to be undermined without a clear and publicly disclosed rationale for doing so.

Michael Simmons is a Sydney-based solicitor and registered migration agent. He is proficient in Bahasa Indonesia and provides legal support to a new Jakarta-based organisation that assists asylum seekers. In addition to pro bono, Michael also volunteers his time to the Law Council of Australia Migration Law Committee, Migration Institute of Australia and New South Wales Young Lawyers.