However, the Commission’s ability to resolve
human rights complaints can be very
limited. Unlike complaints alleging unlawful
discrimination, if the Commission cannot
conciliate a human rights complaint, the person
cannot then bring court proceedings. Rather, if
the Commission finds a breach of human rights
it can report to the Attorney-General.106
Any recommendations made by the Commission
are non-binding and are not enforceable by
the courts. The Federal Government is not
required to respond to a Commission report
about non-compliant laws or policies, or to
recommendations by the Commission that the
government should provide remedies to an
individual victim of human rights violations.
Up until amendments to the Commission’s Act
in 2017, the Attorney-General was obliged to
table these reports in Parliament within 15 sitting
days. For complaints received since 2017, the
Attorney-General is no longer required to table
the reports.
When the inquiry function was first conferred
on the Commission, the then AttorneyGeneral, the Hon Senator Durack, said that
the Commission would not need enforcement
powers ‘of the kind vested in courts’.107 Rather,
the process itself would promote increased
recognition and observance of human rights; as
would the attendant publicity and government
awareness that would result from the reporting
to the Minister. The Attorney concluded that
the Commission’s reports would ‘ensure that
governments and parliaments are aware
of situations in which there needs to be a
redefinition of the rights of different individuals
and will stimulate them to take appropriate
action’.108
A range of reports that have resulted in positive
outcomes in addressing the human rights
violations identified through the reporting
process. For example:
58
• As recommended in report 40, the
Australian Government paid compensation
to 25 Chinese people in immigration
detention who were interviewed by
Chinese authorities while detained or
subject to separation detention.109
• Report 80 led to a parliamentary inquiry
into the detention of people unfit to plead
to criminal charges.110
• Following Report 56, dealing with the
prospect of indefinite detention for
immigration detainees with adverse
security assessments, the Government
established the Independent Reviewer of
National Security Assessments.111
• Report 141 dealt with the situation of
people who had had their visas cancelled
on character grounds, and made a
number of recommendations including
an improved risk assessment process and
the establishment of an independent body
to advise on the release of people from
immigration detention.112 These initiatives
are currently being considered by the
Department of Home Affairs.113
However, these outcomes are discretionary
responses to recommendations by the
Commission. There is no requirement on the
Government to take action in response to a
finding by the Commission that there has been a
breach of human rights. In many cases, no action
is taken, particularly where the findings of the
Commission conflict with Government policy,
such as the mandatory and indefinite detention
of asylum seekers.
In effect, human rights complainants can be left
at the end of a pathway with nowhere to go.
While they have been able to make a complaint
to the Commission, the result is a non-binding
report which may not be effective in achieving
individual justice or reform.