DIMIA

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SEX DISCRIMINATION ACT 1984 (Cth) Section 44(2)

NOTICE OF GRANT OF TEMPORARY EXEMPTION

By this instrument the Human Rights and Equal Opportunity Commission (“the Commission”) grants to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) its contractors and agents, a temporary exemption (“the exemption”) pursuant to section 44(2) of the Sex Discrimination Act (Cth) 1984 (“the Act”), in relation to the operation of sections 22, 23 and 26 of the Act. The temporary exemption applies only on the terms set out in this instrument.

1. TERMS OF THE EXEMPTION

1.1 The temporary exemption is to commence from the date of this Notice and is to continue for a period of 2 years.

1.2 The exemption is granted to DIMIA, its contractors and agents, in response to an application made on behalf of DIMIA by Mr S.D. Davis, First Assistant Secretary, Unauthorised Arrivals and Detention Division, DIMIA contained in his letter dated 22 August 2003.

1.3 The exemption is granted in respect of a project conducted by DIMIA in Woomera, South Australia, known as the Residential Housing Project (Woomera RHP), whereby (i) female detainees and (ii) male detainees up to the age of 18 years at any immigration detention facility are eligible to participate in alternative detention arrangements, namely accommodation in houses in Woomera.

1.4 The exemption is granted on the condition that the operation of the Project be subject to the continuing monitoring of the Commission as set out in 5.9 below.

2. BACKGROUND

2.1 On 7 August 2001, in response to an application from the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), the Commission granted a 12 month exemption in respect of the Woomera RHP to DIMIA, its contractors and agents from the operation of sections 22, 23 and 26 of the Act. On 16 August 2002 the Commission granted a further interim exemption to 15 October 2002. On 14 October 2002 the Commission granted a further 12 month exemption. The applicant now seeks a further 5 year exemption but indicates the continuation of the Woomera RHP will be subject to further assessment in light of demand and other considerations.

2.2 Prior to the further grant of the exemption on 14 October 2002 the Human Rights Commissioner, Dr Sev Ozdowski, the Sex Discrimination Commissioner, Ms Pru Goward, and Commission staff inspected the Woomera Immigration Reception and Processing Centre (IRPC) and the Woomera RHP and interviewed:

  • families in the Woomera RHP;
  • partners and children in the Woomera IRPC of families in the Woomera RHP;
  • those in the IRPC who decided not to take the opportunity to move into the Woomera RHP; and
  • DIMIA and Australasian Correctional Management (“ACM”) officers.

2.3 An evaluation report dated 8 March 2002 of the alternative accommodation trial was prepared for DIMIA by a consultant and a version was provided to the Commission.

3. FINDINGS ON MATERIAL QUESTIONS OF FACT

3.1 Based on the evidence referred to in paragraph 4.1 the Commission’s findings on material questions of fact relating to the application are as follows:

3.2 The capacity of the Woomera RHP has been increased since the time of the grant of the exemption on 14 October 2002 from 25 to 40 participants.

3.3 The Woomera RHP is available to (i) female detainees and (ii) male detainees up to age 18 (previously up to age 13). Participation is voluntary. As the Woomera IRPC holds no detainees, close male relatives in immigration detention would be offered transfer to Baxter IDF, if not already detained there.

3.4 DIMIA established the Woomera RHP as women and children, as minority groups within the detention centre environment, may be left feeling vulnerable in a largely single male adult population. The Department was asked by the Minister to consider alternate detention arrangements which would provide a more normal existence for children with their mother or guardian whilst still abiding by the terms of the Migration Act 1958. The initial trial enabled women and children to live in family style accommodation two kilometres from the Woomera IRPC with the participants approximating a more normal family life in matters such as cooking, having family meals, maintaining the house, doing the laundry and general maintenance of the house. Children were able to live and play in a family atmosphere within a small group house and garden.

3.5 DIMIA does not permit male detainees aged 18 years or over to participate in the Project as it was developed as an alternative place of detention for women and children in detention. Men were not considered to fall within the scope of the Project. DIMIA states that for cultural reasons having males involved might significantly influence the decision of females who might otherwise wish to participate.

3.6 A report prepared for DIMIA by a consultant gave a positive evaluation of the Woomera alternative accommodation trial. Recommendations in the Report that (i) the Project be continued, (ii) the capacity of the Project be increased, and (iii) the eligibility criteria be expanded to include detainees at review stage, have been implemented.

3.7 There is a visits program for wives/children at the Woomera RHP and husbands/ fathers at the Baxter Immigration Detention Facility (IDF). The visits program is described by DIMIA as follows:

“Wednesday AM – Baxter IDF to Woomera RHP for husbands/fathers – return to Baxter IDF late afternoon.
Thursday AM – (optional) Woomera RHP to Baxter IDF for wives/children, for religious services – return to Woomera RHP in the afternoon.
Friday PM – Woomera RHP to Baxter IDF for wives/children – return Sunday AM (see next item)
Sunday AM – wives/children and husbands/fathers travel to Woomera RHP – day at Woomera RHP includes a BBQ lunch – husbands/fathers return to Baxter IDF late afternoon.

If any women and/or children at the RHP wish to travel to Baxter IDF at a non scheduled time, they can make a request and the request will be facilitated as long as a vehicle is going to Baxter IDF (which is usually every weekday). Women and children can also stay for a longer period of time at Baxter IDF if they wish to do so. The Detention Service Provider, ACM, is flexible with the arrangements. If there was an emergency situation where someone from the Woomera RHP needed to see their husbands/father and there was not a scheduled trip to Baxter IDF or a vehicle travelling to Baxter IDF for other business, then action would be taken to facilitate a visit. If there was a special occasion or situation then a visit for male detainees to the RHP, outside the visits schedule, could be facilitated.”

3.8 As stated above, the Human Rights Commissioner and Sex Discrimination Commissioner visited and talked to participants in the Woomera RHP and those at the Woomera IRPC in September 2002. The views expressed on those occasions are outlined below. The Human Rights Commissioner has subsequently visited the Baxter IDF. As a result of those visits the Commission is satisfied that, for the purpose of consideration of the current application, the observations outlined below would continue to be applicable.

  • The participants in the Woomera RHP found it provides a more normal existence “closer to the life we had before” [comment of a resident at the Project]. They are able to cook, shop, have excursions and enjoy the amenity of the communal lawn. Outings are, however, subject to the supervision of ACM Officers.
  • Many female participants in Woomera RHP were distressed by the separation from their husbands and were anxious about their husband’s limited involvement with their children, as well as the effect of that separation and limited involvement on their husbands’ well being. Whilst acknowledging the better environment of the Woomera RHP, distress resulting from separation was an issue as was the impact for children on their relationship with their fathers. There was information before the Commission indicating that families suffered, sometimes severely, from the separation.
  • Some female participants in Woomera RHP indicated they would be concerned about residing in the same house there as non-familial male participants.
  • Husbands of participants preferred their wives and/or children to reside at the Woomera RHP as the environment of the Woomera IRPC was considered not to be a proper place for women and children. Accordingly, husbands reported the benefits of the Woomera RHP for their family, their children and themselves.
  • For fathers residing at the IRPC there was nevertheless the serious issue of separation, its detrimental impact on their well-being and their inability to properly fulfil their role as a parent and husband.
  • Children at the Woomera RHP are able to lead a more normal and healthier life than they would have at the Woomera IRPC. However, for children there is a serious concern about separation from their fathers, that is, children missing their fathers and concern about the impact of separation on the well-being of the fathers.

4. THESE FINDINGS WERE BASED ON THE FOLLOWING EVIDENCE

4.1 The application for exemption from the Minister dated 20 July 2001, the application from DIMIA dated 2 August 2002, the application from DIMIA dated 22 August 2003, the Commission’s own knowledge, including information obtained from its visit to the Woomera IRPC and the Woomera RHP on 26 and 27 September 2002, and to Baxter IDF on 12 and 13 December 2002, and the consultant’s evaluation report prepared for DIMIA dated 8 March 2002.

5. THE COMMISSION’S REASONS FOR GRANTING AN EXEMPTION ARE AS FOLLOWS:

5.1 Having considered the advice and recommendation of the Sex Discrimination Commissioner and the Human Rights Commissioner, and having regard to the matters referred to below the Commission agrees to grant a further temporary exemption for a period of 2 years in respect of the Woomera RHP.

5.2 There is a possibility the Woomera RHP may be in contravention of sections 22, 23 or 26 the Act:

Section 22 which is contained in Division 2 of Part II of the Act renders unlawful discrimination by a person, who provides goods and services or makes facilities available, against another person on the ground of that other person's sex, marital status, pregnancy or potential pregnancy in the provision of those goods, services or facilities.

Section 23 contained in Division 2 of Part II of the Act, renders unlawful discrimination by a person against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy in connection with the provision of accommodation.

Section 26 contained in Division 2 of Part II of the Act, renders unlawful discrimination by a person against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy in connection with the performance of a function or exercise of a power under a Commonwealth law or for the purposes of a Commonwealth program.

5.3 Section 44(2) enables the Commission to grant, on application from a person, a further temporary exemption from the operation of a provision of Division 1 or 2 of Part II of the Act.

5.4 The Commission has previously stated that Australia’s mandatory detention regime is in breach of its human rights obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. In particular, Article 37 of the Convention on the Rights of the Child provides that a child shall be detained only as measure of last resort and for the shortest appropriate period of time. The Commission also notes that the Preamble to the Convention on the Rights of Child recognises the family as the fundamental group of society and the need for a child to grow up in a family environment.

5.5 The Human Rights Commissioner has encouraged the development of alternatives to the current detention regime that are consistent with Australia’s human rights obligations.

5.6 The Commission commends DIMIA on the extension of the eligibility criteria to include males up to 18 years of age and to detainees at review stage, and for the steps it has taken to introduce a visits program enabling husbands/fathers to gain better access to their wives/children at the Woomera RHP.

5.7 In view of the distress caused to families as a result of separation of family members and the impact separation has on the development and well being of the family unit the Commission strongly urges DIMIA to:

(i) give close consideration to any psychological assessment of a family under consideration for participation in the Woomera RHP (including husbands/fathers) in relation to whether separation may have a negative impact on the family and should that be indicated give serious consideration to alternative detention arrangements such as community placement for the entire family;
(ii) closely monitor the psychological well being of the families involved in the Woomera RHP (including husbands/fathers in the Baxter IDF) to ensure the separation is not having a negative impact on the family and should that be evident give serious consideration to alternative detention arrangements such as community placement for the entire family; and
(iii) give serious consideration to the provision of dedicated family accommodation at the Woomera RHP so that the entire family may be together.

5.8 In accordance with the Commission’s Guidelines on applications for temporary exemption under the Sex Discrimination Act, the Commission’s general approach in respect of temporary exemption applications is that the Act in the context of its objects should comprehensively apply. Temporary exemptions under the SDA have rarely been granted. The application seeks a further 5 year exemption, which is the maximum period for which an exemption may be granted by HREOC. The applicant states that by seeking a 5 year exemption it is not stating an intention to continue the operation of Woomera RHP for 5 years but that the continuation of the Woomera RHP will be re-assessed in light of demand for RHP places and other relevant considerations. The Commission generally considers that whilst the granting of a temporary exemption permits an applicant to act inconsistently with the Act on a short term basis, the applicant should use that opportunity to bring itself within the terms of the Act. Accordingly, it may be argued that this is not an appropriate case for the granting of a further exemption as the activity to be protected by the exemption is not fully consistent with the objects of the Act and is potentially ongoing. Further, it may be argued that should DIMIA wish to take action such as this that is potentially ongoing and inconsistent with the objects of the Act, it should be a matter for decision by the Parliament rather than the Commission.

However, it is appropriate to take into account the significant advance made by DIMIA in meeting the terms of the Act, namely permitting males up to the age of 18 to participate in the Woomera RHP. It is also appropriate to take into account relevant human rights instruments including the Convention on the Rights of the Child. In this case, the exemption is not fully consistent with the objects of the Act. However, having regard to the public policy considerations of the benefits that flow to the adult female residents of the Project, their children and thus their husbands/fathers in the IDF from the continuation of the Project, the Commission, on balance, regards it as appropriate, on this occasion, to grant the temporary exemption.

The Commission is of the view that the term of the exemption should be for 2 years. Whilst any further application from DIMIA will be considered on its merits, the Commission is of the view that a term of 2 years for this exemption should provide an adequate opportunity for DIMIA to bring the operation of the Woomera RHP into line with the objects of the SDA or take further significant steps in that direction. Alternatively, it will provide an opportunity for DIMIA to initiate legislative action to limit the operation of the Act if that is considered appropriate.

5.9 This exemption is granted subject to the condition that DIMIA permit the Commission to monitor the operation of the Project including by:

  • notifying the Commission of any proposed changes to the operation of the Project that might restrict the operation of the Project, and providing the Commission with an opportunity to comment on those changes.
  • allowing the Commission, subject only to operational requirements, continued access to the Project as required by the Commission, including the opportunity to interview DIMIA and ACM staff, residents of the Project and other detainees.

Dated this 19th day of September 2003
Signed by the President, the Hon. John von Doussa, on behalf of the Commission.

Please note
Section 45 of the Act provides that applications may be made to the Administrative Appeals Tribunal for a review of a decision made by the Commission under section 44 of the Sex Discrimination Act.


HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SEX DISCRIMINATION ACT 1984 (Cth) Section 44(1)

NOTICE OF GRANT OF TEMPORARY EXEMPTION

By this instrument the Human Rights and Equal Opportunity Commission (“the Commission”) grants to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) its contractors and agents, a temporary exemption (“the exemption”) pursuant to section 44(1) of the Sex Discrimination Act (Cth) 1984 (“the Act”), in relation to the operation of sections 22, 23 and 26 of the Act. The temporary exemption applies only on the terms set out in this instrument.

1. TERMS OF THE EXEMPTION

1.1 The temporary exemption is to commence from the date of this Notice and is to continue for a period of 2 years.

1.2 The exemption is granted to DIMIA, its contractors and agents, in response to an application made on behalf of DIMIA by Mr S.D. Davis, First Assistant Secretary, Unauthorised Arrivals and Detention Division, DIMIA contained in his letter dated 22 August 2003. The application sought a 5 year exemption.

1.3 The exemption is granted in respect of projects to be conducted by DIMIA at Port Augusta, South Australia, and Port Hedland, Western Australia, known as Residential Housing Projects (RHPs), whereby (i) female detainees and (ii) male detainees up to the age of 18 years at any immigration detention facility are eligible to participate in the alternative detention arrangements provided for by those RHPs.

1.4 The exemption is granted on the condition that the operation of those RHPs be subject to the continuing monitoring of the Commission as set out in 5.9 below.

2. BACKGROUND

2.1 On 7 August 2001, in response to an application from the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), the Commission granted a 12 month exemption to DIMIA, its contractors and agents from the operation of sections 22, 23 and 26 of the Act in respect of a trial of an RHP at Woomera, South Australia. On 16 August 2002 the Commission granted a further interim exemption to 15 October 2002 in respect of this RHP. On 14 October 2002 the Commission granted a further 12 month exemption.

2.2 Prior to the further grant of the exemption for the Woomera RHP on 14 October 2002 the Human Rights Commissioner, Dr Sev Ozdowski, the Sex Discrimination Commissioner, Ms Pru Goward, and Commission staff inspected the Woomera Immigration Reception and Processing Centre (IRPC) and the Woomera RHP and interviewed:

  • families in the Woomera RHP;
  • partners and children in the IRPC of families in the Woomera RHP;
  • those in the IRPC who decided not to take the opportunity to move into the Woomera RHP; and
  • DIMIA and Australasian Correctional Management (“ACM”) officers.

2.3 An evaluation report dated 8 March 2002 of the alternative accommodation trial was prepared for DIMIA by a consultant and a version was provided to the Commission. The review concluded the trial of the Woomera RHP was a success.

2.4 DIMIA wishes to continue the RHP at Woomera and establish RHPs at Port Augusta and Port Hedland.

3. FINDINGS ON MATERIAL QUESTIONS OF FACT

3.1 Based on the evidence referred to in paragraph 4.1 the Commission’s findings on material questions of fact relating to the application follow.

3.2 The Port Augusta RHP will have a capacity of 40 participants. It will operate in suburban Port Augusta, 2 kilometres from the town centre and 10 kilometres from Baxter IDF. The RHP will consist of eight 3 bedroom houses plus an administration building.

3.3 The Port Hedland RHP will have a capacity of 10 – 15 participants. It will be located in an existing DIMIA facility which consists of 5 en-suite motel rooms, with communal kitchen, dining and living areas. The building has a pool and garden and an existing 2.4 metre chain wire fence. It is 750 metres from Port Hedland IRPC and 1.5 kilometres from the town.

3.4 These RHPs are available to (i) female detainees and (ii) male detainees up to age 18. Participation in the RHPs is voluntary.

3.5 Close male relatives of the participants in these RHPs who are in immigration detention would be offered transfer to Baxter Immigration Detention Facility (IDF), or Port Hedland IRPC, as appropriate, if not already detained there.

3.6 There will be a visits program for these RHPs similar to the Woomera RHP visits program that operates for wives/children at the Woomera RHP and husbands/ fathers at the Baxter IDF. In view of the proximity of the Port Augusta RHP to the Baxter IDF and the Port Hedland RHP to the Port Hedland IRPC a more flexible visits program may be developed for these RHPs.

The Woomera visits program is described by DIMIA as follows:

“Wednesday AM – Baxter IDF to Woomera RHP for husbands/fathers – return to Baxter IDF late afternoon.

Thursday AM – (optional) Woomera RHP to Baxter IDF for wives/children, for religious services – return to Woomera RHP in the afternoon.

Friday PM – Woomera RHP to Baxter IDF for wives/children – return Sunday AM (see next item)

Sunday AM – wives/children and husbands/fathers travel to Woomera RHP – day at Woomera RHP includes a BBQ lunch – husbands/fathers return to Baxter IDF late afternoon.

If any women and/or children at the [Woomera] RHP wish to travel to Baxter IDF at a non scheduled time, they can make a request and the request will be facilitated as long as a vehicle is going to Baxter IDF (which is usually every weekday). Women and children can also stay for a longer period of time at Baxter IDF if they wish to do so. The Detention Service Provider, ACM, is flexible with the arrangements. If there was an emergency situation where someone from the Woomera RHP needed to see their husbands/father and there was not a scheduled trip to Baxter IDF or a vehicle travelling to Baxter IDF for other business, then action would be taken to facilitate a visit. If there was a special occasion or situation then a visit for male detainees to the RHP, outside the visits schedule, could be facilitated.”

3.7 Frequent supervised visits of participants at the Port Augusta RHP and Port Hedland RHP to town for shopping and recreation will be permitted.

3.8 As women and children, as minority groups within the detention centre environment, may be left feeling vulnerable in a largely single male adult population the Department was asked by the Minister to consider alternate detention arrangements which would provide a more normal existence for children with their mother or guardian whilst still abiding by the terms of the Migration Act 1958. The initial trial of the Woomera RHP enabled women and children to live in family style accommodation two kilometres from the Woomera IRPC with the participants approximating a more normal family life in matters such as cooking, having family meals, maintaining the house, doing the laundry and general maintenance of the house. Children were able to live and play in a family atmosphere within a small group house and garden.

3.9 A report prepared for DIMIA by a consultant gave a positive evaluation of the Woomera alternative accommodation trial. Recommendations in the Report that (i) the Project be continued, (ii) the capacity of the Project be increased, and (iii) the eligibility criteria be expanded to include detainees at review stage, have been implemented.

3.10 DIMIA does not permit male detainees aged 18 years or over to participate in the Project as it was developed as an alternative place of detention for women and children in detention. Men were not considered to fall within the scope of the project. DIMIA states that for cultural reasons having males involved might significantly influence the decision of females who might otherwise wish to participate.

3.11 As stated above, the Human Rights Commissioner and Sex Discrimination Commissioner visited and talked to participants in the Woomera RHP and those at the Woomera IRPC in September 2002. The views expressed on those occasions are outlined below. The Human Rights Commissioner has subsequently visited the Baxter IDF. As a result of those visits the Commission is satisfied that, for the purpose of consideration of the current application, the observations outlined below would continue to have relevance.

  • The participants in the Woomera RHP found it provides a more normal existence “closer to the life we had before” [comment of a resident at the Project]. They are able to cook, shop, have excursions and enjoy the amenity of the communal lawn. Outings are, however, subject to the supervision of ACM Officers.
  • Many female participants in Woomera RHP were distressed by the separation from their husbands and were anxious about their husband’s limited involvement with their children, as well as the effect of that separation and limited involvement on their husbands’ well being. Whilst acknowledging the better environment of the Woomera RHP, distress resulting from separation was an issue as was the impact for children on their relationship with their fathers. There was information before the Commission indicating that families suffered, sometimes severely, from the separation.
  • Some female participants in Woomera RHP indicated they would be concerned about residing in the same house there as non-familial male participants.
  • Husbands of participants preferred their wives and/or children to reside at the Woomera RHP as the environment of the Woomera IRPC was considered not to be a proper place for women and children. Accordingly, husbands reported the benefits of the Woomera RHP for their family, their children and themselves.
  • For fathers residing at the IRPC there was nevertheless the serious issue of separation, its detrimental impact on their well-being and their inability to properly fulfil their role as a parent and husband.
  • Children at the Woomera RHP are able to lead a more normal and healthier life than they would have at the Woomera IRPC. However, for children there is a serious concern about separation from their fathers, that is, children missing their fathers and concern about the impact of separation on the well-being of the fathers.

4. THESE FINDINGS WERE BASED ON THE FOLLOWING EVIDENCE

4.1 The application for exemption from the Minister dated 20 July 2001, the application from DIMIA dated 2 August 2002, the application from DIMIA dated 22 August 2003, the Commission’s own knowledge, including information obtained from its visit to the Woomera IRPC and the Woomera RHP on 26 and 27 September 2002, and to Baxter IDF on 12 and 13 December 2002, and the consultant’s evaluation report prepared for DIMIA dated 8 March 2002.

5. THE COMMISSION’S REASONS FOR GRANTING AN EXEMPTION ARE AS FOLLOWS:

5.1 Having considered the advice and recommendation of the Sex Discrimination Commissioner and the Human Rights Commissioner, and having regard to the matters referred to below the Commission agrees to grant a temporary exemption for a period of 2 years in respect of the Port Augusta and Port Hedland RHPs.

5.2 There is a possibility these RHPs may be in contravention of sections 22, 23 or 26 the Act:

Section 22 which is contained in Division 2 of Part II of the Act renders unlawful discrimination by a person, who provides goods and services or makes facilities available, against another person on the ground of that other person's sex, marital status, pregnancy or potential pregnancy in the provision of those goods, services or facilities.
Section 23 contained in Division 2 of Part II of the Act, renders unlawful discrimination by a person against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy in connection with the provision of accommodation.
Section 26 contained in Division 2 of Part II of the Act, renders unlawful discrimination by a person against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy in connection with the performance of a function or exercise of a power under a Commonwealth law or for the purposes of a Commonwealth program.

5.3 Section 44(1) enables the Commission to grant, on application from a person, a temporary exemption from the operation of a provision of Division 1 or 2 of Part II of the Act.

5.4 The Commission has previously stated that Australia’s mandatory detention regime is in breach of its human rights obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. In particular, Article 37 of the Convention on the Rights of the Child provides that a child shall be detained only as measure of last resort and for the shortest appropriate period of time. The Commission also notes that the Preamble to the Convention on the Rights of Child recognises the family as the fundamental group of society and the need for a child to grow up in a family environment.

5.5 The Human Rights Commissioner has encouraged the development of alternatives to the current detention regime that are consistent with Australia’s human rights obligations.

5.6 The Commission commends DIMIA on the extension of the eligibility criteria to now include males up to 18 years of age and detainees at review stage, and for the steps it has taken to introduce a visits program enabling husbands/fathers to gain better access to their wives/children at the Woomera RHP (and which will now apply in respect of the Port Augusta and Port Hedland RHP).

5.7 In view of the distress caused to families as a result of separation of family members and the impact separation has on the development and well being of the family unit the Commission strongly urges DIMIA to:

(i) give close consideration to any psychological assessment of a family under consideration for participation in the RHPs (including husbands/fathers) in relation to whether separation may have a negative impact on the family, and should that be indicated give serious consideration to alternative detention arrangements such as community placement for the entire family;
(ii) closely monitor the psychological well being of the families involved in the RHPs (including husbands/fathers at the IDF or IRPC) to ensure the separation is not having a negative impact on the family and should that be evident give serious consideration to alternative detention arrangements such as community placement for the entire family; and
(iii) give serious consideration to the provision of dedicated family accommodation at the RHPs so that the entire family may stay together.

5.8 In accordance with the Commission’s Guidelines on applications for temporary exemption under the Sex Discrimination Act, the Commission’s general approach in respect of temporary exemption applications is that the Act in the context of its objects should comprehensively apply. Temporary exemptions under the Act have rarely been granted. The application seeks a 5 year exemption in respect of both RHPs, which is the maximum period for which an exemption may be granted by the Commission. The Commission generally considers that whilst the granting of a temporary exemption permits an applicant to act in contravention of the Act on a short term basis, the applicant should use that opportunity to bring itself within the terms of the Act. Accordingly, it may be argued that this is not an appropriate case for the granting of an exemption as the activity to be protected by the exemption is not fully consistent with the objects of the Act and is potentially ongoing. Further, it may be argued that should DIMIA wish to take action such as this that is potentially ongoing and inconsistent with the objects of the Act, it should be a matter for decision by the Parliament rather than the Commission.

However, it is appropriate to take into account the significant advance made by DIMIA in meeting the terms of the Act, namely now permitting males up to the age of 18 to participate in these projects. It is also appropriate to take into account relevant human rights instruments including the Convention on the Rights of the Child. In this case the exemption is not fully consistent with the objects of the Act. However, having regard to the public policy considerations of the benefits that flow to the adult female residents of the RHPs, their children and thus their husbands/fathers in the IDF or IRPC from the operation of the project the Commission decides, on balance, that it is appropriate on this occasion, to grant the temporary exemption.

The Commission is of the view that the term of the exemption should be for 2 years. Whilst any further application from DIMIA will be considered on its merits, the Commission is of the view that a term of 2 years for this exemption should provide an adequate opportunity for DIMIA to bring the operation of the RHPs into line with the objects of the Act or take further significant steps in that direction. Alternatively it will provide an opportunity for DIMIA to initiate legislative action to limit the operation of the Act if that is considered appropriate.

5.9 This exemption is granted subject to the condition that DIMIA permit the Commission to monitor the operation of the RHPs including by:

  • notifying the Commission of any proposed changes to the operation of the RHPs that might restrict their operation, and providing the Commission with an opportunity to comment on those changes.
  • allowing the Commission, subject only to operational requirements, access to the RHPs as required by the Commission, including the opportunity to interview DIMIA and ACM staff, residents of the RHPs and other detainees.

Dated this 19th day of September 2003.
Signed by the President, the Hon. John von Doussa, on behalf of the Commission.

Please note
Section 45 of the Act provides that applications may be made to the Administrative Appeals Tribunal for a review of a decision made by the Commission under section 44 of the Sex Discrimination Act

Last updated 20 November 2003.