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Annual Report 2002-2003: Chapter 3

Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003

Chapter
3: Legal Services


The primary responsibilities of the Legal Section
for the 2002–03 financial year were to:

  • Assist the President and/or the Human Rights Commissioner
    in the preparation of notices and reports under the Human Rights
    and Equal Opportunity Commission Act 1986
    (Cth).
  • Act as instructing solicitor for the Commission
    in interventions in legal proceedings.
  • Act as instructing solicitor for the Commissioners
    in applications to appear as amicus curiae in legal proceedings.
  • Act as counsel or instructing solicitor for the
    Commission in external litigation such as applications for review of
    Commission decisions under the Administrative Decisions (Judicial
    Review) Act 1977
    (Cth).
  • Provide internal legal advice on discrimination,
    human rights and other laws relevant to the work of the Commission.
  • Assist the Commission to examine enactments or proposed
    enactments under the Human Rights and Equal Opportunity Commission
    Act 1986
    (Cth).
  • Assist the Commission to consider applications for
    exemptions under the Sex Discrimination Act 1984 (Cth).
  • Respond to applications under the Freedom of
    Information Act 1982
    (Cth) on behalf of the Commission.
  • Assist the Commission in the preparation of its
    report on the National Inquiry into Children in Immigration Detention.
  • Monitor the development of the anti-discrimination
    law jurisprudence in the Federal Court and Federal Magistrates Service.
    Since 13 April 2000 jurisdiction to hear matters terminated by the President
    lies with the Federal Court and the Federal Magistrates Service.
  • Assist in the preparation of submissions to Senate
    Inquiries and committees, especially where the Commission’s core
    legislation is involved.
  • Represent the Commission externally in providing
    information and education on human rights matters, and to
  • Represent the Commission in international project
    work.

Complaints relating to breaches
of human rights or discrimination in employment made under the Human Rights
and Equal Opportunity Commission Act

Where a complaint is made under the Human Rights
and Equal Opportunity Commission Act 1986
(Cth) alleging breaches
of human rights and discrimination in employment, the President or his
delegate may report to the Attorney-General where conciliation cannot
resolve the matter and an inquiry has satisfied the President there has
been a breach of human rights or discrimination in employment. The Legal
Section assists the President or his delegate to inquire into the complaints
and prepare reports to the Attorney-General.

Between 1 July 2002 and 30 June 2003, the following
reports were tabled in Parliament by the Minister pursuant to this Commission
function (the full reports are available at
www.humanrights.gov.au/legal/reports_hreoca.html

HREOC Report No. 19

Report of an inquiry into a complaint by Mr
Mark Hall against the NSW Thoroughbred Racing Board (August 2002)

Mr Hall lodged a complaint with the Commission alleging
discrimination in his employment and occupation on the ground of his criminal
record. That complaint arose after the Board prevented Mr Hall from working
for Ms Gai Waterhouse of Gai Waterhouse Racing Stables as a stablehand
from about 28 April 1999 and refused to issue him with a stablehand licence
on or about 21 June 1999. Mr Hall alleged that the reason, or one of the
reasons, for the Board’s refusal to allow him to continue working
as a stablehand and its refusal to issue him with a licence, was his criminal
record.

In response, the Board claimed that the decision was
not made on the basis of Mr Hall’s criminal record but on other
grounds, in particular Mr Hall’s failure to disclose his criminal
record. Alternatively, the Board relied upon the inherent requirements
exception to discrimination.

Commissioner Ozdowski found that Mr Hall had been discriminated
against on the ground of his criminal record and that the inherent requirements
exception did not apply.

The Commissioner made the following recommendations
in relation to the payment of compensation to Mr Hall and in relation
to the prevention of a repetition of the relevant acts and/or a continuation
of the relevant practices:

  • that the Board pay to Mr Hall the amount of $33
    303.05 (plus interest), and
  • that the Board conduct a review of its processes
    regarding the use of criminal records, having regard to the following
    matters:
  • the definition of discrimination in section
    3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
  • the broader human rights context, including relevant
    international law obligations such as those contained in article 17
    of the International Covenant on Civil and Political Rights,
    and
  • the need to develop clear written guidelines regarding
    the procedures of the Board for the use of criminal record, which reflect
    those matters.

As at the date of the report, the Commission had no
knowledge that any action had been taken or was being taken by the Board
as a result of the recommendations or findings.

HREOC Report No. 20

Report of an inquiry into a complaint by Ms
Renai Christensen against Adelaide Casino Pty Ltd of discrimination in
employment on the basis of criminal record (July 2002)

This Report is of an inquiry into a complaint by Ms
Renai Christensen alleging that she was discriminated against by Adelaide
Casino Pty Ltd (Adelaide Casino) when she sought employment as a bar attendant
in October 2000. Adelaide Casino rejected Ms Christensen’s application
for employment at the final stage of the selection process because its
security representative declined to certify that Ms Christensen was a
‘fit and proper person’ to be employed, a requirement of the
Casino Act 1997 (SA). Adelaide Casino was of the view that the circumstances
of a larceny offence committed by Ms Christensen as a juvenile (some seven
or eight years earlier) meant that she did not meet the requirements of
trustworthiness and good character.

The former President of the Commission found that Adelaide
Casino had discriminated against Ms Christensen on the basis of her criminal
record.

In particular, the former President found that:

  • the term ‘criminal record’ encompasses
    not only the actual record of a conviction but also the circumstances
    of a conviction
  • the decision to exclude Ms Christensen from the
    final stage of the selection process constitutes a distinction made
    on the basis of her criminal record, which had the effect of nullifying
    her equality of opportunity or treatment in employment
  • trustworthiness and good character are inherent
    requirements of the job of bar attendant. However, in the circumstances
    of this complaint (including Ms Christensen’s work history since
    the conviction), the connection between the rejection of Ms Christensen’s
    application on the basis of her criminal record and those requirements
    is not sufficiently close.

The former President recommended that Adelaide Casino
apologise to Ms Christensen for rejecting her application as a bar attendant
because of her juvenile conviction and not further exclude her from applying
for employment because of that conviction.

In response to these findings and recommendations Adelaide
Casino stated that it maintained its view that there was no inappropriate
discrimination and advised it would not be taking any action in response
to the findings and recommendations.

HREOC Report No. 21

Report of an inquiry into a complaint by six
asylum seekers concerning their transfer from immigration detention centres
to State prisons and their detention in those prisons

This Report concerns an inquiry into breaches of the International Covenant on Civil and Political Rights by the Department
of Immigration and Multicultural and Indigenous Affairs, (DIMIA), on behalf
of the Commonwealth. The complaint was made by Amnesty International on
behalf of six men seeking asylum in Australia. Each of the detainees was
held in immigration detention pursuant to section 189 of the Migration
Act, initially in an Immigration Detention Centre (IDC). The complaint
concerned the transfer of the detainees from the IDCs in which they were
held to state correctional facilities (state prisons), and the continued
detention of the detainees in those prisons. Amnesty alleged, on behalf
of the detainees, that this transfer, and the continued detention of the
detainees in the state prisons was a breach of their human rights.

The former President found:

  • the transfer of one asylum
    seeker from an IDC to a state prison was an act by DIMIA which was inconsistent
    with, and contrary to, the asylum seekers’ human rights recognised
    in article 9(1) of the International Convention on Civil and Political
    Rights
  • the decision to continue the detention of two of
    the asylum seekers in Western Australian state prisons was an act by
    DIMIA which was inconsistent with, and contrary to, their human rights
    recognised in article 9(1) of the International Convention on Civil
    and Political Rights
  • the decision of DIMIA to transfer one of the asylum
    seekers to a state prison from a detention centre, and the failure by
    DIMIA to consider the rape of the asylum seeker during monthly reviews
    of his imprisonment, were acts by the Australian Government which were
    inconsistent with, and contrary to, his human rights recognised in article
    10(1) of the International Convention on Civil and Political Rights
  • the failure by DIMIA to provide separate treatment
    for the six asylum seekers while they were held in immigration detention
    in New South Wales and West Australian state prisons was inconsistent
    with, and contrary to, their human rights recognised in article 10(2)(a)
    of the International Convention on Civil and Political Rights.

Of the six complainants, one was deported and one removed
from Australia in April 2000. The Commission made a number of recommendations
in the Report to prevent a repetition of the relevant acts and the continuation
of the relevant practices.

DIMIA provided a response to those recommendations,
stating that it did not agree with the findings made by the former President
and thus did not propose to take any action in relation to the recommendations
made.

HREOC Report No. 22

Report of an inquiry into a complaint by Mr
XY concerning his continuing detention despite having completed his criminal
sentence

This Report concerns an inquiry into a complaint lodged
by Mr XY alleging that the continuing and indefinite nature of his detention
amounts to a breach of his rights under article 9(1) of the International
Covenant on Civil and Political Rights (ICCPR)
which provides as
follows:

“Everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law”.

The complainant came to Australia in February 1982
and was granted permanent residency in July 1988. He was born in Germany,
though claimed he was a stateless person of no nationality. The complainant
was convicted of criminal offences in Australia, and served his criminal
sentence in Western Australia. He was served with a deportation order
by DIMIA on 23 July 1997. Mr XY completed his criminal sentence on 11
June 2000 and since that date was detained pursuant to section 253 of
the Migration Act 1958 (Cth). This provides that if a person
is subject to a deportation order, then they may be detained in immigration
detention pending their deportation. Negotiations took place between DIMIA
and the Polish Government in an attempt to deport the complainant to Poland.
However, DIMIA advised in a letter dated 25 June 2002 that negotiations
with Poland had ceased as the Polish Government would not issue the complainant
with a certificate of Polish citizenship. In that letter, DIMIA also advised
that negotiations with the German Government for the complainant’s
possible deportation to Germany, which had commenced as early as 1997,
were continuing. At the date that the Report was issued by the former
President in October 2002, Mr XY continued to be detained pursuant to
section 253 of the Migration Act 1958 at the Perth IDC.

The former President of the Commission found that negotiations
with Germany, if ever entered into by the German Government, had stagnated,
and there was no evidence to confirm the likelihood of Mr XY’s deportation
to that country. She was of the view that the complainant’s detention
had been indeterminate since some time in 2001, and most certainly was
indeterminate by March 2002 when the Polish Government confirmed that
it would not accept him, and that this amounted to arbitrary detention.
The former President therefore found that the continued detention of Mr
XY was in breach of article 9(1) of the International Convention on
Civil and Political Rights
. She recommended that Mr XY be released
from detention pending deportation, and that the Commonwealth of Australia
pay him financial compensation in the amount of $45 000.

On 23 September 2002, the Commission wrote to DIMIA
to seek its advice as to what action it had taken or proposed to take
as a result of the findings and recommendations of the former President.
In a letter to the Commission dated 8 October 2002, an officer of DIMIA
provided comments and stated that as DIMIA did not accept the former President’s
findings it did not propose to take any action on the basis of her findings
or recommendations.

HREOC Report No. 23

Report of an inquiry into a complaint by Mr
Hassan Ghomwari concerning his immigration detention and the adequacy
of the medical treatment he received while detained (October 2002)

This inquiry related to a complaint by Mrs Kylie Ghomwari
on behalf of her husband Mr Hassan Ghomwari. Mr Ghomwari was placed in
Villawood Immigration Detention Centre (VIDC) after DIMIA discovered that
he had overstayed his visitor visa. A decision was made to transfer him
to the Metropolitan Reception and Remand Centre (MRRC) at Silverwater.
While there, Mr Ghomwari contracted Hepatitis B. Mrs Ghomwari asserted
that the human rights of her husband were breached in two ways:

  • Mrs Ghomwari alleged that
    her husband did not receive appropriate medical assistance for his Hepatitis
    B after his return to the VIDC, and
  • Mrs Ghomwari criticised the conditions of her husband’s
    detention at the MRRC, and in particular that he was held with, and
    received the same treatment as, convicted prisoners in the MRRC.

The former President found that article 10(1) of the International Convention on Civil and Political Rights had been
breached. In particular, she found that:

  • the level and quality of medical services provided
    by the Australian Government to Mr Ghomwari after his return to the
    VIDC on 8 May 2000 did not meet minimum international standards and
    was inconsistent and contrary to his human rights recognised in article
    10(1), and
  • the failure by the Australian Government to provide
    Mr Ghomwari with a regime of separate treatment while he was held in
    immigration detention in the MRRC was inconsistent with, and contrary
    to, his human rights recognised in article 10(2)(a).

The former President recommended that the Australian
Government pay compensation in the amount of $26 500 and take immediate
steps to comply with its obligations under article 10(1) in respect of
the medical services provided to persons in immigration detention in all
immigration detention centres in Australia. DIMIA did not accept the former
President’s findings, arguing that it already complied with its
obligations under article 10(1) in respect of medical services provided
to persons in detention, and as a result, did not state what action it
had taken or proposed to take in relation to any of the recommendations.

HREOC Report No. 24

Report of an inquiry into complaints by five
asylum seekers concerning their detention in the separation and management
block at the Port Hedland Immigration Reception and Processing Centre
(PHIRPC) (December 2002)

Amnesty International Australia complained that the
asylum seekers’ human rights were violated when they were placed
in the Separation and Management Block within the PHIRPC (known as Juliet
or ‘J’ block), on 1 December 2000 and held there for six and
a half days.

The former President of the Commission did not find
that the initial transfer of the asylum seekers to ‘J’ block
was in breach of their human rights.

However, the former President found that:

  • the Commonwealth’s detention of the asylum
    seekers in ‘J’ block for six and a half days constituted
    arbitrary detention within the meaning of article 9(1) of the International
    Convention on Civil and Political Rights
    , and
  • the conditions of detention accorded to the asylum
    seekers while they were held in ‘J’ block breached their
    right to be treated with humanity and respect for their inherent dignity
    under article 10(1) of the International Convention on Civil and
    Political Rights
    .

The former President recommended that the Australian
Government:

  • pay compensation to each of the asylum seekers
    for the violation of their rights under articles 9(1) and 10(1) of the International Convention on Civil and Political Rights of $25
    000, and a further $10 000 in compensation on account of the aggravated
    circumstances
  • apologise to each of the asylum seekers in writing
  • take all steps to ensure that the conditions of
    detention in any form of segregated detention area meet minimum standards
    of humane treatment as required by article 10(1), and
  • take all steps necessary to implement all the recommendations
    of the Security Risk Management Report commissioned by the Commonwealth
    after the incident, including the development of policies and procedures
    setting out the process for at least daily review of segregated detention,
    and the grounds for maintaining segregated detention.

DIMIA did not indicate what, if any, action it was going
to take in relation to the first and second recommendation. In relation
to the third recommendation, it indicated that while it does take all
steps to ensure compliance with article 10(1) of the ICCPR, there were
some failures to comply with operating policies and procedures at the
time and while these failures were not a breach of article 10(1), they
would not occur again as an improved system had been put in place since
the alleged breaches. In relation to recommendation four, DIMIA indicated
that the Security Risk Management Report has “informed the Department’s
thinking and assisted in its program of continuous improvement across
all centres”.

HREOC Report No. 25

Report of an inquiry into a complaint by Mr
Mohammed Badraie on behalf of his son Shayan regarding acts or practices
of the Commonwealth of Australia (the Department of Immigration and Multicultural
and Indigenous Affairs)

This Report concerned a complaint alleging acts or
practices inconsistent with, or contrary to, the Convention on the
Rights of the Child
. Those acts or practices occurred in connection
with the detention of the complainant’s son at Woomera Immigration
Reception and Processing Centre and the Villawood Immigration Detention
Centre with his family.

The former President found that a number of the acts
and practices complained of were inconsistent with, or contrary to, the
following articles of the Convention on the Rights of the Child:

  • article 3(1) of the Convention on the Rights
    of the Child
    , which provides that in all actions concerning children
    the best interests of the child shall be a primary consideration
  • article 19(1) of the Convention on the Rights
    of the Child
    , which, among other things, obliges Australia to take
    positive steps to protect children from physical and mental violence
  • article 37(c) of the Convention on the Rights
    of the Child
    , which provides that every child deprived of liberty
    shall be treated with humanity and respect for the inherent dignity
    of the human person, and in a manner which takes into account the needs
    of persons of his or her age, and
  • article 37(b) of the Convention on the Rights
    of the Child
    , which, among other things, provides that no child
    shall be deprived of his or her liberty unlawfully or arbitrarily and
    that the arrest, detention or imprisonment of a child shall be for the
    shortest appropriate period of time.

The former President recommended that compensation
in the amount of $70 000 be paid by the respondent and that a written
apology be furnished on behalf of the respondent, by the Minister for
Immigration and Multicultural and Indigenous Affairs. The former President
indicated that those recommendations reflected the serious nature of the
breaches involved in this matter. As at the date of the Report, to the
Commission’s knowledge, the respondent had not taken any action
in response to those recommendations.

The former President also made other recommendations
aimed at preventing a repetition of the relevant acts and/or a continuation
of the relevant practices. The respondent provided material which indicated
that it had taken certain steps which partially addressed some of those
matters.

External litigation

Interventions

The Commission has the power to intervene, with leave
of the Court, in proceedings that involve issues of race, sex, marital
status, pregnancy and disability discrimination, human rights issues and
equal opportunity in employment. The power to seek leave to intervene
is contained in the:

  • Racial Discrimination Act 1975 (Cth), section
    20(1)(e)
  • Sex Discrimination Act 1984 (Cth), section
    48(1)(gb)
  • Disability Discrimination Act 1992 (Cth),
    section 67(1)(l)
  • Human Rights and Equal Opportunity Commission
    Act 1986
    (Cth), sections 11(1)(o) and 31(j).

The Commission will consider seeking leave to intervene
in cases where the human rights or discrimination issues are significant
and central to the proceedings, and where these issues are not being addressed
by the parties to the proceedings. The guidelines that the Commission
uses to determine if it will seek leave to intervene in a matter are publicly
available on the Commission’s website at www.humanrights.gov.au/legal/intervention_info.html

The relevant Court handed down the following decisions
during the 2002–03 financial year.

Attorney-General for the Commonwealth v
Kevin and Jennifer

A summary of the Commission’s involvement in
this matter is detailed in the 2001–02 Annual Report, available
on the Commission’s website at www.humanrights.gov.au
/annrep01_02/.

The Full Court of the Family Court handed down its
decision on 21 February 2003. The Full Court considered that the central
issue to be considered was whether it was open to Justice Chisholm to
find that at the date of the marriage between Kevin and Jennifer, Kevin
(a post-operative transsexual person who was registered at birth as a
female) was a man within the meaning of the Marriage Act. The
Court made clear that the issue of whether a marriage can occur between
people of the same sex was not in issue in this case, and that the status
of pre-operative transsexual people was not directly in issue.

The Commission’s submissions in this matter focused
on the international human rights principles it considered relevant to
the issues before the Court, general principles of statutory construction
under Australian law, especially in relation to the interpretation of
certain aspects of the Marriage Act, and the application of those
principles to the grounds of appeal. A full copy of those submissions
are at www.humanrights.gov.au/legal/guidelines/
submission_kevin_jennifer.html.

The judgment necessarily dealt with a wide range of
issues. The following points, however, can be highlighted:

  • the words “man” and “marriage”
    as used in the Marriage Act should bear their contemporary ordinary
    everyday meaning
  • in considering what the contemporary everyday meaning
    of the words “man” and “woman” were, the Court
    considered the English case of Corbett v Corbett [1971] P83 which held
    that an individual’s sex is determined at birth by reference to
    an examination of three biological factors, that is, chromosomes, gonads
    and genitals. The Full Court did not find the reasoning in Corbett to
    be persuasive, and found that it does not represent the law in Australia.
    It agreed with Justice Chisholm’s view that a range of factors
    are relevant to the consideration of determining a person’s sex
    for the purposes of marriage law, such as their cultural sex, social
    acceptance and ‘brain sex’
  • the Court referred extensively to the Commission’s
    submissions concerning the human rights issues relevant to the case
    and stated that ‘we should say that we were most indebted to the
    Commission for its assistance, which proved very helpful to us in considering
    this matter’.

At the time of this report, the Attorney-General had
not sought special leave to appeal to the High Court in this matter.

Ming Dung Luu v Minister for Immigration
and Multicultural Affairs

The Commission’s involvement in this matter prior
to this financial year can be found on the Commission’s website
at www.humanrights.gov.au/annrep01_02/ and www.humanrights.gov.au/annrep00_01/.

The proceedings involve the application for judicial
review of a decision of the Minister for Immigration and Multicultural
Affairs (the “Minister”) to detain Mr Luu in immigration detention
in a maximum security prison, pending his deportation, following his parole
in relation to a serious assault charge. Section 253(9) of the Migration
Act 1958
(Cth) allows the Minister to release people who are detained
in immigration detention pending deportation. The Minister determined
not to exercise his power to release Mr Luu or revoke the deportation
order. Mr Luu’s application for that decision to be judicially review
was dismissed by Justice Marshall and during the last financial year,
the Full Court handed down its decision dismissing Mr Luu’s appeal
from that decision.

In its submissions at first instance and on appeal,
the Commission focussed upon matters arising from the Minister’s
decision under section 253(9). The Commission’s submissions can
be found at www.humanrights.gov.au/legal/guidelines/submissions_luu.html and www.humanrights.gov.au/legal/guidelines/submission_
mingdungluu.html.
In summary, amongst other things, the Commission’s
submissions were dealt with by the Court as follows:

  • Whether the detention of Mr Luu pending
    deportation should be construed as being subjects to certain limits
    which were relevantly activiated in this matter.
    The
    Full Court did not rule out the possibility that there may be some implied
    upper temporal limit on the power to detain a person subject to a deportation
    order but held that any such limit was not breached in circumstances
    where it had been found as a fact (by Justice Marshall) that the Minister
    was able to give a reasonably specific approximation of when Mr Luu
    was able to be deported
  • Whether Australia’s treaty obligations
    under articles of the International Covenant on Civil and Political
    Rights were a relevant consideration for the respondent in making a
    decision under section 253(9) of the Migration Act 1958
    (Cth) whether
    to release the appellant from immigration detention.
    Justice Marshall
    considered (and the Full Court was prepared to assume) that such obligations
    may be relevant considerations for the purposes of the exercise of the
    discretion under section 253(9) of the Migration Act 1958 (Cth).
    However, any requirement to have regard to those obligations did not
    give rise to reviewable error in light of Justice Marshall’s findings
    of fact regarding the Minister’s views on the likelihood of deportation
  • Whether, upon its proper construction, section
    253(9) of the Migration Act 1958 (Cth) permitted the Minister to have
    regard to “the protection of the Australian community” in
    making the decision to maintain the appellant in immigration detention.
    The Full Court considered but did not accept the Commission’s
    submissions regarding this issue.

Members of the Yorta Yorta Aboriginal Community
v State of Victoria & Ors

In May 2002, the High Court granted leave to the Commission
to intervene in an appeal brought by Members of the Yorta Yorta Aboriginal
Community against the decision of the Full Court of the Federal Court.
The Full Court had upheld the decision of the primary judge, dismissing
the applicants’ native title claim. The claim, which related to
land in south-western New South Wales and north-western Victoria, involved
the first application for determination of native title to come on for
trial after the enactment of the Native Title Act 1993 (Cth).

The central issue before the High Court was the construction
of the definition of ‘native title’ in section 223 of the Native Title Act 1993. Under that section, ‘native title’
is defined, in part, as the rights and interests of Aboriginal peoples
or Torres Strait Islanders in relation to land or water possessed under
the traditional laws acknowledged and customs observed by those peoples.

The Commission’s submissions are available at www.humanrights.gov.au/legal/guidelines/yorta_yorta.html. The Commission submitted that the provisions of the Native Title Act
1993
should be construed consistently with the following human rights
principles: equality before the law in articles 2 and 5 of the International
Convention on the Elimination of all forms of Racial Discrimination and
article 26 of the International Covenant on Civil and Political Rights
;
the rights of Indigenous minorities to enjoy their culture in article
27 of the International Covenant on Civil and Political Rights;
and, freedom of religion in article 18 of the International Covenant
on Civil and Political Rights.
The Commission’s submissions
emphasised that, consistent with these human rights principles, the inquiry
as to the existence of native title should commence with consideration
of the claimant group’s current acknowledgment and observance of
laws and customs and whether that has a traditional basis. That is, tradition
should be viewed from the perspective of the present, rather than from
an historical perspective which requires the claimants to show that laws
and customs have been handed down from generation to generation.

On 12 December 2002 the Court by a majority of five
to two dismissed the appeal. Their Honours were satisfied there was no
continued acknowledgment and observance of laws and customs and the forebears
of the claimants had ceased to occupy their lands in accordance with those
laws and customs.

NAAV v Minister for Immigration and Multicultural
Affairs and NABE v Minister for Immigration and Multicultural Affairs

The Commission was given leave to intervene in the
hearing of these two appeals by a Full Court of the Federal Court (comprised
of Chief Justice Black and Justice Beaumont, Wilcox, French and von Doussa).

The common issues in each appeal concerned the construction
and validity of the so called “privative clause” amendments
inserted in the Migration Act 1958 (Cth) following the MV
Tampa
incident. Those amendments were introduced with the stated
purpose of significantly reducing the availability of judicial review
of administrative decisions made under the Migration Act 1958 (Cth) and under the Migration Regulations 1994 (Cth).

The Commission’s full submissions can be found
at www.humanrights.gov.au/legal/guidelines/submission_naav.html. The Commission argued that the Court should adopt a generous interpretation
of the privative clause such that a broader category of jurisdictional
error would provide a basis for seeking judicial review. The key concept
underlying the Commission’s submissions was:

  • that the Australian legal system recognises, in
    various ways, an obligation to provide an effective remedy to persons
    present in this country whose interests have been adversely affected
    by a decision of an officer of the Australian Government, where the
    decision is otherwise than in accordance with law
  • in the alternative, the Commission contended that
    the clause was constitutionally invalid in that judicial power was being
    conferred upon decision-makers under the Migration Act 1958 (Cth) or
    that if the Refugee Review Tribunal’s decisions, which involved
    jurisdictional error, were protected by the privative clause, the amendments
    constituted an impermissible intrusion by Parliament into the exercise
    of judicial power.

The five judges of the Full Court delivered separate
judgments. All members of the Court accepted that the privative clause
is valid. The majority view (Chief Justice Black and Justice Beaumont
and von Doussa) was that while the amendments to the legislation do not
prevent access to the Courts, they leave little scope for an applicant
to argue successfully that the decision affecting him/her was invalid
on legal grounds. Justice Wilcox and French were of the view that the
amendments do not operate to restrict judicial review as substantially
as the Minister contended.

Both NABE and NAAV have sought special leave to appeal
to the High Court and the application is to be heard on 12 September 2003.

Leave granted to intervene in the financial year

During 2002–03, the Commission was granted leave
to intervene in six matters. Summaries of those matters follow:

Ainsworth Game Technology v Song

The Commission was granted leave to appear as intervener
by the Full Federal Court in this matter. The matter was an appeal from
a decision of the Federal Magistrates Court.

The case concerned a female employee, Ms Song, who
sought flexible work hours to enable her to leave work in the afternoon
and pick-up/drop-off her child from kindergarten. Ms Song was told by
her employer that she would have to work part-time if she wished to leave
work for this purpose and would not be able to take a late lunch break
as she had requested.

The applicant’s complaint of discrimination on
the basis of family responsibilities (section 14(3A) of the Sex Discrimination
Act 1984
(Cth)) was upheld by Raphael FM. The Magistrate found that
unilaterally altering the employee’s employment from full-time to
part-time amounted to a “dismissal” for the purposes of the
section, and that the employee had discriminated against Ms Song in requiring
her to work part-time. The Court ordered that Ms Song be reinstated to
her former employment and that her employment agreement be varied to permit
her to take her lunch break from 2.55pm to 3.25pm.

The employer appealed, challenging both the decision
in relation to the meaning of “dismissal” and the power of
the Magistrate to make the order he did relating to her hours of employment.
The Commission made written and oral submissions on the meaning of “dismissal”
in section 14(3A). The submissions argued that a broader definition of
that term, such that it includes constructive dismissal as in the present
case, is correct and consistent with the beneficial nature of the Sex
Discrimination Act.

The parties were encouraged by the Full Court to enter
into further negotiation to resolve the case at the conclusion of submissions.
The matter was subsequently settled prior to the delivery of judgment
by the Full Court.

Ashmore Reef Inquest

The Commission was granted leave to appear as intervener
at this inquest in November 2002 into the deaths of two female asylum
seekers.

The two women had travelled from Indonesia on board
a boat, the “Sumbar Lestari”, with 158 other asylum seekers
(the majority being from Afghanistan) and four crew members. It was their
intention to reach Ashmore Reef and seek asylum in Australia. On 8 November
2001, the boat was sighted by an Australian Customs Vessel a short distance
outside Australian waters. In accordance with ‘Operation Relex’
(part of the Government’s Border Protection Policy), it was ordered
to stop and was handed a warning notice. It continued into Australian
waters and was soon boarded by members of the Royal Australian Navy. Shortly
after this boarding occurred there was an explosion on the boat and it
caught fire. All people on board the boat were evacuated as the boat sank
and the Customs and Navy personnel began a rescue operation. Two women,
Ms Fatimah Husseini and Ms Nurjan Husseini drowned in this evacuation
as neither could swim.

At the Inquest into their deaths, the Commission sought
to raise relevant international human rights issues and, in particular,
the right to life. The Commission focussed on whether the Australian Customs
Vessel and the Royal Australian Navy were adequately equipped to deal
with a Safety Of Life At Sea (SOLAS) situation and whether their focus
on border protection issues compromised their ability to do so. The Commission’s
full submissions are available at www.humanrights.gov.au/legal/ashmore/leave_intervene.html.

Importantly, and against the submission of the Commonwealth,
the Coroner appeared to accept that article 6 of the International
Covenant on Civil and Political Rights
applies to asylum seekers
outside of Australian territory and “enjoins the State not only
to refrain from intentional and unlawful taking of life, but also to take
appropriate steps to safeguard the lives of those within its jurisdiction”.

The Coroner found that the cause of death of the two
deceased women was immersion (drowning) after they were forced into the
water on 8 November 2001 when their boat caught on fire.

Graincorp v Markham

This matter was an appeal to a Full Bench of the Australia
Industrial Relations Commission (AIRC) against a decision of Commissioner
Blair that the termination of the employment of the respondent, Mr Markham,
was harsh, unjust or unreasonable. The basis for the termination was conduct
of Mr Markham which had occurred at a training course in which he was
alleged to have sexually harassed a colleague, Ms Barton. Mr Markham had
engaged in an aggressive and sexually derogatory outburst which related
to Ms Barton while he was in a hotel room adjoining hers. It was claimed
by Mr Markham that his outburst was not directed to Barton and that he
did not know she was in her room at the time.

Commissioner Blair had found that the actions of Markham
were unsatisfactory but did not amount to sexual harassment.

The Commission was granted leave by the AIRC to intervene
and made oral and written submissions on the question of sexual harassment.
The Commission’s submissions can be located at www.humanrights.gov.au/legal/guidelines/
submission_markham.html.

The Commission submitted that Commissioner Blair had
erred in attempting to equate several phrases Mr Markhan had made and
that the context of the words was relevant in determining whether or not
they amounted to sexual harassment. The Commission argued that the words
amounted to “sex-based harassment”, which may constitute sexual
harassment or sex discrimination depending upon the context.

The Commission further submitted that Commissioner
Blair had erred in holding that sexual harassment needed to be “directly
directed” at its “target” and that there needs to be
an intent to harass.

The submission also emphasised the broader context
of equality of opportunity in employment in determining what constitutes
“harsh, unjust and unreasonable” termination. In this context,
the Commission submitted that sex-based harassment (whether it falls within
the definition of sexual harassment or not) enforces and perpetuates modes
of behaviour that should not be seen as acceptable in light of the international
standards to which Australia has committed itself.

The AIRC upheld the appeal and found that the termination
was not harsh, unjust or unreasonable. They found that, in the context
of the conduct, sexual harassment had taken place. The AIRC departed from
some of the factual findings of Commissioner Blair in some important respects
and disagreed with his key findings as to the nature of sexual harassment.
In particular, the AIRC confirmed that it is not necessary to have an
“intent to harass” the relevant test is whether or not a reasonable
person, having regard to all the circumstances, would have anticipated
offence, humiliation or intimidation.

Minister for Immigration and Multicultural
and Indigenous Affairs v Al Masri

This matter involved consideration of section 196 of
the Migration Act 1958 (Cth).

Mr Al Masri is a Palestinian asylum seeker from the
Gaza strip whose application for a protection visa was refused by a delegate
of the Minister and the Refugee Review Tribunal. Mr Al Masri asked the
Minister to return him to the Gaza Strip. Officers of the Minister’s
department were unable to meet that request as Israel, Egypt and Jordan
refused to cooperate. The department had also tried (and failed) to remove
Mr Al Masri to Syria.

At first instance, Justice Merkel found that there
was no prospect of Mr Al Masri being removed in the reasonably foreseeable
future and therefore ordered his release from detention. After Mr Al Masri
was released, negotiations with Israel resulted in an agreement that allowed
the Minister to effect his removal to the Gaza Strip. In a further decision,
Justice Merkel ruled that it was permissible for Mr Al Masri to be taken
back into immigration detention on the basis that it had become possible
to effect Mr Al Masri’s removal. Mr Al Masri was then detained and
subsequently removed. The Minister nevertheless continued with an appeal
against Justice Merkel’s initial decision and the Commission was
granted leave to intervene in the appeal.

The Full Federal Court (comprised of Chief Justice
Black, Justice Sundberg and Weinberg) dismissed the Minister’s appeal
and awarded costs to the respondent. The Court found that the power under
section 196 of the Migration Act 1958 (Cth) to detain was subject to limitations
which, on the facts before the Court, had been exceeded, making Mr Al
Masri’s detention unlawful.

The Court noted that the central issue in the appeal
was whether the power and duty of the Minister to detain an unlawful non-citizen,
who had no entitlement to a visa but who had asked to be removed from
Australia, continued even when there was no real likelihood or prospect
of that person’s removal in the reasonably foreseeable future. The
Court held in relation to the following matters (all of which were the
subject of submissions by the Commission which can be found at www.humanrights.gov.au/legal/intervention/almasri.html):

  • clear words are required before a statute can be
    construed as removing a fundamental right which in this case was the
    right to personal liberty. Their Honours agreed with Justice Merkel’s
    conclusion that the power to detain under section 196 of the Migration
    Act 1958 (Cth) is subject to an implied limitation.
  • the Full Court stated that it was “fortified”
    in that conclusion by reference to the principle that section 196 should,
    so far as language permits, be interpreted and applied in a manner consistent
    with established rules of international law and which accords with Australia’s
    treaty obligations.

The Minister has since filed an application for special
leave to appeal to the High Court.

Minister for Immigration and Multicultural
and Indigenous Affairs v VFAD

The respondent to this appeal is an Afghan asylum seeker
who was detained at Curtin Immigration Reception and Processing Centre
in Western Australia. The respondent lodged an application for review
with the Refugee Review Tribunal when he was advised that his application
for a protection visa had been refused.

The respondent’s lawyers made a Freedom of Information
application for copies of all documents on the respondent’s departmental
file. When the file was produced to the respondent’s solicitors,
they discovered a document headed ‘Protection Visa Decision Record’
granting the respondent a protection visa. That document was signed by
a delegate of the Minister for Immigration and Multicultural and Indigenous
Affairs but its contents had never been communicated to the respondent.
The Minister contended that that document represented a “draft assessment”
and not the final decision.

The respondent commenced proceedings in the Federal
Court seeking a declaration that the respondent had been granted a protection
visa and was a lawful non-citizen. The respondent also sought, by way
of interlocutory relief, an order that pending the hearing and determination
of his application he be released from immigration detention. Justice
Merkel heard that application at first instance and ordered that the Minister
be restrained from continuing to detain the respondent in immigration
detention. The Minister appealed that decision to the Full Federal Court
and the Commission was granted leave to intervene in the hearing of the
appeal.

The central issues on appeal focussed upon whether
the power to make interlocutory orders could be exercised to order the
release, until final hearing of the substantive matter, of persons in
immigration detention, or whether the Minister was correct in submitting
that that power had been withdrawn since the introduction of section 196(3)
of the Migration Act 1958 (Cth).

The Full Federal Court unanimously dismissed the Minister’s
appeal.

Their Honours expressly or implicitly accepted the
majority of the Commission’s submissions which can be found at www.humanrights.gov.au/legal/intervention/vfad.html.
In particular, their Honours accepted the Commission’s submission
that Parliament had not made “unmistakably clear” its intention
to abrogate the power of the Court to protect a fundamental freedom by
ordering the release in appropriate circumstances, on an interlocutory
basis, of persons in detention who have seriously arguable claims to be
lawful non-citizens and thus to have their liberty.

The Court further noted that it was “fortified”
in its conclusion by reference to the principle that that section 196
should, so far as language permits, be interpreted and applied in a manner
consistent with established rules of international law and which accords
with Australia’s treaty obligations. The Commission had submitted
(and the Court accepted) that articles 2(3), 9(1) and 9(4) of the International
Covenant on Civil and Political Rights
were relevant in that context.

S134/2002 v Minister for Immigration and
Multicultural and Indigenous Affairs

This matter (which was heard by the High Court in conjunction
with the matter of S157/2002 v Commonwealth) dealt with the construction
and validity of the so called “privative clause” amendments
inserted in the Migration Act 1958 (Cth) following the Tampa
incident. Those amendments were discussed above in relation to the matters
of NAAV and NABE.

Broadly speaking, there were two issues to be decided
by the High Court:

  • whether the privative clause and associated
    provisions were constitutionally valid, and
  • if so, how the privative clause and associated provisions
    should be construed.

The Commission made submissions only on the construction
of the privative clause and these submissions can be located at www.humanrights.gov.au/legal/guidelines/submission_s134.html.

The High Court handed down separate decisions in the
two matters. The more significant decision is that handed down in S157/2002,
where the Court found that the privative clause and associated provisions
were constitutionally valid. However, the Court rejected a submission
made by the Minister for Immigration and Multicultural and Indigenous
Affairs and the Commonwealth in which it was suggested that the privative
clause had reduced all otherwise mandatory requirements of the Migration
Act 1958
(Cth) and Regulations to the status of “mere guidelines”.
In a joint judgment, Justice Gaudron, McHugh, Gummow, Kirby and Hayne
held that a breach of the express or implied conditions and limitations
imposed by the Migration Act 1958 (Cth) will be reviewable if
such a breach amounted to a jurisdictional error.

Their Honours did not provide exhaustive guidance as
to what classes of error would be reviewable. Those issues will now need
to be determined on a case-by-case basis, with the Courts considering
the particular power being exercised and the wording of the statutory
provisions in question.

Chief Justice Gleeson and Justice Callinan (in separate
judgments) substantially agreed with the joint judgment. However, Justice
Callinan appeared to put the threshold test to be made out by an applicant
for judicial review of a migration decision somewhat higher than the majority,
referring to a need to show a “manifest error of jurisdiction”.

Amicus curiae

Section 46PV of Human Rights and Equal Opportunity
Commission Act provides that the Aboriginal and Torres Strait Islander
Social Justice Commissioner, the Disability Discrimination Commissioner,
the Human Rights Commissioner, the Race Discrimination Commissioner and
the Sex Discrimination Commissioner may, with permission of the Federal
Court or Federal Magistrates Service, seek to appear as amicus curiae (or friend of the Court) in the hearings of complaints that have
been terminated by the President. The proceedings in which the relevant
Commissioner or Commissioners can exercise this function are proceedings:

  • in which the Commissioner thinks that the orders
    sought, or likely to be sought, may affect to a significant extent the
    human rights of persons who are not parties to the proceedings
  • that, in the opinion of the Commissioner, have significant
    implications for the administration of the relevant Act or Acts administered
    by the Commission
  • that involve special circumstances that satisfy
    the Commissioner that it would be in the public interest for the Commissioner
    to assist the court concerned as amicus curiae.

Guidelines for the exercise of this function are publicly
available on the Commission’s website at
www.humanrights.gov.au/legal/amicus_info.html.

There were two matters in the financial year in which
a Commissioner appeared as amicus curiae. Those matters are:

Access for All Alliance (Hervey Bay) v
Hervey Bay City Council

The Access for All Alliance alleges disability discrimination
in the provision of services by the Hervey Bay City Council. The particular
services which are the subject of the complaint are:

  • an outside entertainment
    area at a local community centre is said to be inaccessible to people
    with mobility disabilities because it lacks a ramp which complies with
    Australian Standards (in terms of gradient, handrails and curbrails)
    and is alleged to lack an area (such as a concrete ‘pad’)
    from which people with mobility disabilities can enjoy entertainment
    provided at the centre
  • certain toilet blocks in the Hervey Bay area effectively
    inaccessible by virtue of the placement of handbasins on the outside
    of the blocks, making them inappropriate for use by persons with bodily
    function aids who may need to use the handbasins as part of their toileting
    routine, and
  • concrete picnic tables on the Scarness Foreshore
    Development fail to allow access for mobility impaired members of the
    Alliance because the fixed chairs do not contain a gap sufficient to
    enable access.

The matter was heard by Federal Magistrate Baumann
from 2–5 June. The Acting Disability Discrimination Commissioner
was granted leave to appear as amicus curiae and made written and oral
submissions on:

  • the correct approach to statutory construction in
    the context of the Disability Discrimination Act 1992 (Cth)
  • the importance of dignity and amenity in determining
    whether or not a person can, for the purposes of the Disability Discrimination
    Act 1992 (Cth), comply with a relevant requirement or condition and
    whether or not it is ‘reasonable’
  • the interpretation of the defence of ‘unjustifiable
    hardship’ under sections 23(2) and 24(2) of the Disability
    Discrimination Act 1992
    (Cth), the test for which is set out in
    section 11 of the Disability Discrimination Act 1992 (Cth)
    and its relationship with the concept of ‘reasonableness’
    in section 6, and
  • the relationship between Australian Standards, the
    Building Code of Australia (‘the BCA’) and the Disability
    Discrimination Act 1992
    (Cth), including the relevance of the Australian
    Standards and the BCA in determining the ability of persons with a disability
    to comply with a requirement or condition, and the concept of ‘reasonableness’
    under section 6.

As at the end of the financial year, the decision
of Federal Magistrate Baumann was reserved.

Trudy Gardner v All Australia Netball Association (AANA)

The respondent AANA imposed an interim ban preventing
pregnant women from playing netball in the Commonwealth Bank Trophy, the
national tournament which they administered. The applicant was pregnant
when the ban was imposed and was prevented from playing in a number of
matches as a result. She complained of discrimination on the basis of
her pregnancy in the provision of services under section 22 of the Sex
Discrimination Act 1984
(Cth). The service in this case was the opportunity
to participate in the competition as a player.

AANA accepted that it had discriminated against Ms
Gardner, but argued that its actions were protected by the exemption contained
in section 39 of the Sex Discrimination Act 1984 (Cth) which
provides that it is not unlawful for a voluntary body to discriminate
“in connection with” the provision of services to members.
It was not disputed at the hearing that AANA is a voluntary body for the
purposes of the Sex Discrimination Act 1984 (Cth), membership
of which consisted of State and Territory netball associations. Individual
netballers were not eligible to be members of AANA. The issue of dispute
was whether or not the exemption under section 39 applied in the present
case.

The Sex Discrimination Commissioner was granted leave
to appear as amicus curiae in the proceedings and made submissions
as to the correct construction of section 39. The submissions of the Commissioner
argued for a narrow approach to the section, consistent with the objects
of the Sex Discrimination Act 1984 (Cth). It was argued that
the section should only provide protection for discriminatory acts taking
place within the membership of a voluntary body – it should not
enable discrimination against non-members or the public at large.

Federal Magistrate Raphael decided that exemption in
section 39 did not apply to the actions of AANA. He held that it provided
protection for voluntary bodies only in their relationships with their
members, but not in their relationships with non-members. Ms Gardner was
not, and could not be, a member of AANA. The words “in connection
with” could not extend the exemption in the manner argued by the
respondent and accordingly the actions of AANA constituted unlawful discrimination
under the Sex Discrimination Act 1984 (Cth).

Damages of $6 750 (a sum agreed by the parties) and
costs were awarded to Ms Gardner.

Applications under the Administrative Decisions (Judicial
Review) Act

The Commission, or a member of the Commission, is often
a party in judicial review legal proceedings. These legal proceedings
occur when the Commission is named as a respondent in matters where an
application has been made to the Federal Court or the Federal Magistrates
Service seeking judicial review of a decision made by the Commission,
the President or a Commissioner. These reviews can be sought pursuant
to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In accordance with established legal principle, the
Commission (as decision maker) usually submits to the jurisdiction of
the Court in these matters, leaving the substantive parties (usually the
complainant and respondent to the complaint that was before the Commission)
to present the matter to the Court. In a very small number of matters,
submission to the jurisdiction of the Court is not practicable –
in which case the Commission has appeared, but has in these matters, attempted
to assist the Court rather than act in a way that would appear contentious
or adversarial.

The numbers of applications made under Administrative
Decisions (Judicial Review) Act 1977
(Cth) for the years 1995–2002
are shown in the table below. The significant decrease in the number of
judicial review matters in which the Commission is a party in the financial
years of 2000–01, 2001–02 and 2002–03 are the result
of the Commission’s hearing and determination function in relation
to complaint of unlawful discrimination ceasing in April 2000 when it
was assumed by the Federal Court and Federal Magistrates Service.

Table 32: Trends in numbers of Administrative
Decisions (Judicial Review) Act applications where the Commission is named
as respondent

 
Year
1996–97
1997–98
1998–99
1999–00
2000–01
2001–02
2002–03
Total
11
35
19
22
13
4
7

A significant case under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) that the Commission has been involved
in during 2002–03 is the matter of:

Alexander Purvis (on behalf of Daniel Hoggan)
v State of New South Wales (Department of Education) and Human Rights
and Equal Opportunity Commission

On 13 November 2000, Hearing Commissioner Innes found
that the Department of Education had directly discriminated against Daniel
Hoggan on the basis of his disability by exclusion of Daniel Hoggan from
school, and by some other acts and omissions concerning the Department’s
management of him while attending the school.

The Department appealed the decision to the Federal
Court. The Commission submitted to the jurisdiction of the Court and did
not play an active role in the proceedings. On 29 August 2001, Justice
Emmett held that the Commission had erred in law in various respects,
and set the decision aside.

The Legal Aid Commission, acting for Mr Purvis, then
appealed the decision to the Full Federal Court. The Commission continued
to submit to the jurisdiction of the Court. The appeal was heard on 19
February 2002. In its decision dated 24 April 2002, the Full Federal Court
(Justice Spender, Gyles and Conti) dismissed the appeal and ordered the
appellant (but not the Commission) to pay the department’s costs.

The applicant filed an application seeking special
leave to appeal the decision of the Full Federal Court to the High Court.
The special leave application was heard in Sydney on 5 November 2002.
The Court granted the applicant special leave to appeal to the Full Bench
of the High Court.

The High Court heard this matter on 29–30 April
2003. The Commission made both oral and written submissions to the Court.
In summary, the Commission made submissions on:

  • the definition of “disability” in the Disability Discrimination Act 1992 (Cth)
  • the meaning of less favourable treatment in section
    5(1) of the Disability Discrimination Act 1992 (Cth)
  • the meaning of “different accommodation or
    services” in section 5(2) of the Disability Discrimination
    Act 1992
    (Cth)
  • the proper interpretation of section 22 of the Disability
    Discrimination Act 1992
    (Cth) (discrimination in education).

All parties made additional written submissions in
relation to issues that arose during the course of the hearing. The additional
submissions of the Commission further addressed the interpretation of
section 5 of the Disability Discrimination Act.

As at the date of this report, the Court had reserved
its decision.

The applicant filed an application seeking special
leave to appeal the decision of the Full Federal Court to the High Court.
The special leave application was heard in Sydney on 5 November 2002.
The Court granted the applicant special leave to appeal to the Full Bench
of the High Court.

The High Court heard this matter on 29–30 April
2003. The Commission made both oral and written submissions to the Court.
In summary, the Commission made submissions on:

  • the definition of “disability” in the Disability Discrimination Act 1992 (Cth)
  • the meaning of less favourable treatment in section
    5(1) of the Disability Discrimination Act 1992 (Cth)
  • the meaning of “different accommodation or
    services” in section 5(2) of the Disability Discrimination
    Act 1992
    (Cth)
  • the proper interpretation of section 22 of the Disability
    Discrimination Act 1992
    (Cth) (discrimination in education).

All parties made additional written submissions in
relation to issues that arose during the course of the hearing. The additional
submissions of the Commission further addressed the interpretation of
section 5 of the Disability Discrimination Act.

As at the date of this report, the Court had reserved
its decision.

Review of Federal Anti-Discrimination
Jurisdiction 2000–2002

During the financial year, the Legal Section completed
a major project titled Change and Continuity: Review of the Federal
Unlawful Discrimination Jurisdiction
. This project was a review of
the unlawful discrimination jurisdiction of the Federal Court and Federal
Magistrates Service (FMS) for the period September 2000 to September 2002.

The impetus for the project was the transfer on 13
April 2000 of the function for the hearing of complaints of unlawful discrimination
under the Racial Discrimination Act 1975 (Cth), Sex Discrimination
Act 1984
(Cth) and the Disability Discrimination Act 1992 (Cth)
from the Commission to the Federal Court and the FMS. This change to the
administration of federal unlawful discrimination law was met with some
trepidation by sections of the community who feared that the development
of jurisprudence in the area would be compromised by a more legalistic
approach by the judiciary and that the capacity of the FMS and the Federal
Court to make costs orders would result in applicants, often already in
a position of vulnerability, as a matter of course being burdened with
the costs of the respondent if their proceedings were not successful.

In that context, the Commission undertook to review
the operation of the new jurisdiction for a two year period from the date
of the first decision being handed down (13 September 2000 to 13 September
2002) so as to:

  • assess the nature of the jurisprudence that was
    emerging from the FMS and the Federal Court in respect of unlawful discrimination
    law, so as to inform itself of developments in the law
  • enable it to more fully consider concerns that the
    transfer of the jurisdiction would result in the law being interpreted
    in a more conservative fashion than it was by the Commission
  • consider the manner in which interlocutory applications,
    procedural and evidentiary matters were being dealt with by the FMS
    and the Federal Court, and
  • analyse statistically the costs orders that were
    being made by the FMS and the Federal Court and the principles that
    were being applied in the making of such orders.

In summary, the review made the following conclusions:

  • to the extent that it is possible to comment on jurisprudential
    trends after only two years, the interpretation and development of the
    law under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) by the Federal Court and
    FMS was largely consistent with the principles that had been developed
    by the Commission and the courts that reviewed its decisions during
    the duration of its jurisdiction
  • some principles under the Disability Discrimination
    Act 1992
    (Cth) have been interpreted by the FMS and the Federal
    Court in a more restrictive manner since the jurisdiction was transferred.
    However, that more restrictive approach has taken place in the context
    of the administrative law review of a decision of the Commission (being
    the matter of Purvis v State of New South Wales referred to
    above). This matter would have proceeded regardless of whether the Commission
    did or did not retain its hearing function. In those circumstances,
    it is not necessarily correct to attribute any narrowing of the relevant
    principles under the Disability Discrimination Act 1992 (Cth)
    to the transfer of jurisdiction to the FMS and Federal Court, and
  • where an applicant was unsuccessful in proceedings
    substantively relating to an application arising out of a complaint
    of unlawful discrimination, the FMS and the Federal Court did not order,
    as a matter of course, that the unsuccessful applicant pay the costs
    of the respondent. The FMS did so in 64 percent of decisions made during
    the review period and the Federal Court did so in 50 percent of decisions.

A full copy of the review is available at www.humanrights.gov.au/legal/review/.

International project work

Technical cooperation project with the South African
Commission on Gender Equality

As reported in previous Annual Reports, the Commission
has been working on a technical cooperation project with the South African
Commission on Gender Equality (CGE). The Legal Section has been involved
in one aspect of that project which relates to legal intervention. The
aim of that part of the project is to improve the capability of the CGE
to participate effectively in relevant litigation in South Africa concerning
gender related issues.

In September/October 2002, CGE staff attended the offices
of the Commission in Sydney and had the opportunity to see, first hand,
how the Commission conducts its own intervention and amicus practice.
Members of the Commission’s Legal Section also presented a series
of structured seminars highlighting particular aspects of the Commission’s
intervention/amicus work.

Secondment to Malaysian Human Rights Commission

At its inaugural meeting in 1996, the members of the
Asia Pacific Forum of National Human Rights Institutions highlighted the
desirability of staff exchanges as a means of advancing the promotion
and protection of human rights across the Asia Pacific region.

The aims of the staff exchange program included the:

  • development of skills and knowledge of the staff
    of forum member institutions
  • implementation of specific activities for both the
    Secretariat and member institutions, and
  • enhancement of the regional nature of the forum’s
    work.

As part of this program, a staff exchange was agreed
upon between the Commission and Malaysia (SUHAKAM). From 27 February to
19 March 2003, a senior legal officer of the Commission undertook a placement
at SUHAKAM (situated in Kuala Lumpur) and from 24 March to 11 April 2003,
a senior legal officer of SUHAKAM undertook a placement at the Commission,
primarily within the Legal Section and the Sex Discrimination Unit of
the Commission.

Other activities

During 2002–03, staff members of the Legal Section
undertook a range of external activities. These included:

  • presenting seminars in Sydney, Melbourne, Canberra,
    Adelaide, Perth and Brisbane in conjunction with the relevant Law Societies
    on the findings of Change and Continuity: Review of the Federal Unlawful
    Discrimination Jurisdiction
  • attending the Commonwealth Law Conference in Melbourne,
    Gilbert & Tobin Centre of Public Law Constitutional Law Conference
    and Gilbert & Tobin Centre of Public Law Conference on a Bill of
    Rights
  • accompanying the Human Rights Commissioner to meetings
    of the International Coordinating Committee of National Institutions
    for the Promotion and Protection of Human Rights in Geneva
  • presenting a lecture to the Malleson’s Human
    Rights Interest Group on Human Rights Law in Australia, and
  • participating in the Attorney General’s Core
    Consultative Group on the development of federal age discrimination
    law.