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Annual Report 2007-2008: Chapter 5 - Legal Services

Chapter 5
Legal Services

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5.1 RESPONSIBILITIES AND OVERVIEW

The Legal Section provides legal advice to and representation for HREOC, the
President and Commissioners. Its work includes:

  • Advising on human rights, discrimination and other laws relevant to
    the work of HREOC;
  • Preparing notices and reports under the Human Rights and Equal
    Opportunity Commission Act concerning complaints of breaches of human rights or
    discrimination in employment;
  • Representing HREOC in proceedings in which it intervenes to make
    submissions about human rights issues;
  • Representing Commissioners as amicus curiae in unlawful
    discrimination proceedings;
  • Legal education and promoting awareness of developments in human
    rights and discrimination law;
  • Representing HREOC in external litigation such as review proceedings
    under the Administrative Decisions (Judicial Review) Act 1977 (Cth);
  • Preparing and advising on submissions to government and law reform
    bodies concerning the human rights implications of changes or proposed changes
    to the law;
  • Assisting HREOC to consider applications for exemptions under the Sex
    Discrimination Act and Age Discrimination Act;
  • Responding on behalf of HREOC to applications for access to
    information under the Freedom of Information Act 1982 (Cth); and
  • Assisting in international technical assistance work undertaken by
    HREOC.

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5.2 REPORTS CONCERNING BREACHES OF HUMAN RIGHTS OR DISCRIMINATION IN
EMPLOYMENT

The Human Rights and Equal Opportunity Act gives HREOC the function of
inquiring into complaints concerning breaches of human rights by the
Commonwealth (or persons/organisations acting on behalf of the Commonwealth) and
discrimination in employment.

HREOC attempts to resolve such complaints through conciliation, where
appropriate. If the matter is not resolved through conciliation and the
President is satisfied that a breach of human rights or an act of discrimination
has occurred, the President reports on the matter to the federal
Attorney-General. The President can make recommendations to compensate for loss
or injury suffered by the complainant, but these are not legally
enforceable.

Between 1 July 2007 and 30 June 2008, the President reported to the
Attorney-General on two matters.

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5.2.1 HREOC Report No. 38

Report of an Inquiry into a complaint by Mr Frank Ottaviano of
discrimination in employment on the basis of criminal record against South
Australia Police (State of South Australia)

In this matter, the President found that Mr Ottaviano was discriminated
against by South Australian Police on the basis of his criminal record.

Mr Ottaviano was convicted in 1991 for receiving stolen goods. He was ordered
to complete 200 hours of community service, which he completed at the Fort Largs
Police Academy (‘the Academy’), a division of SA Police. Following
completion of that community service, he was employed by SA Police as a
groundsperson at the Academy and subsequently promoted to a supervisory
groundsperson position.

In 2001, Mr Ottaviano’s position was made redundant. He was placed with
the Police Security Services Branch (‘the PSSB’), another division
of SA Police, as a security guard. He obtained the necessary TAFE certification
for the position and worked in a security guard role for three months. However,
prior to being formally employed in the role, SA Police undertook a criminal
record check as part of its standard employment procedures. This check revealed
his conviction. He was advised that he would not be offered a position as a
security guard because of that criminal record.

The President concluded that Mr Ottaviano possessed the requisite level of
integrity and character for the position, notwithstanding his criminal record.
Amongst other factors, Mr Ottaviano had provided approximately 10 years of
service to SA Police, during which time his employment and integrity had been
praised highly by his supervisors.

The President recommended that SA Police (or the State of South
Australia):

  • pay Mr Ottaviano $20 000 in compensation;
  • provide Mr Ottaviano with an apology; and
  • not further exclude Mr Ottaviano from being considered for the
    position of security guard with the PSSB.

SA Police has indicated that it chooses not to make any public statement as
to its response to HREOC’s findings and recommendations.

The report is available on-line at
www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_38.html

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5.2.2 HREOC Report No. 39

Complaint by Mr Huong Nguyen and Mr Austin Okoye against the Commonwealth
of Australia (Department of Immigration and Citizenship, formerly the Department
of Immigration and Multicultural and Indigenous Affairs) and GSL (Australia) Pty
Ltd

In this matter, the President found that the Commonwealth and GSL (Australia)
Pty Ltd (‘GSL’) breached the human rights of Mr Nguyen and Mr Okoye,
as well as three other immigration detainees, in connection with their transfer
between Maribyrnong Immigration Detention Centre and Baxter Immigration
Detention Facility on17 September 2004.

The President concluded that the vehicle in which the detainees were
transported was inappropriate for the journey (lasting 6½ – 7 hours),
particularly that:

  • the detainees were locked into separate, cramped and claustrophobic
    steel compartments in which they were unable to move around to any extent;
  • the air-conditioning unit was not properly functioning and caused the
    compartments to overheat;
  • there were no direct windows to the outside and the compartments were
    generally dark; and
  • there were no toilet facilities on board.

Furthermore, the President concluded that the above conditions were
exacerbated by the manner in which the transfer was carried out by the officers
involved, including that:

  • the officers did not provide the detainees with any food for the
    journey and, with the exception of two detainees, no water or other liquids;
  • the officers failed to take any breaks during the journey to Mildura;
    and
  • the officers ignored obvious and repeated pleas from the detainees
    for water; and toilet/rest breaks, including seeing detainees urinating in their
    compartments via the CCTV feed.

The President concluded that the above circumstances amounted to:

  • degrading treatment, in breach of Article 7 of the International
    Covenant on Civil and Political Rights
    ; and
  • treatment of persons deprived of their liberty with a lack of
    humanity and respect for the inherent dignity of the human person, in breach of
    Article 10(1) of the International Covenant on Civil and Political
    Rights
    .

Federal Discrimination Law Cover

 

 

 

* * * * * * * * * * * * * * * *
HREOC released the 2008 edition of
Federal Discrimination Law during the
reporting period. See 5.7
EDUCATION AND PROMOTION

 

 

The President further found that Mr Okoye suffered the additional indignity
of drinking his own urine in an attempt to relieve his excessive thirst during
the journey. In addition, the President found the following further breaches of
the human rights of Mr Nguyen:

  • arbitrary interference with his family life, in breach of Articles
    17(1) and 23(1) of the International Covenant on Civil and Political Rights, by failing to give adequate consideration to his family ties in Melbourne
    before transferring him to Baxter; and
  • use of excessive force, in breach of Article 10(1), immediately prior
    to the transfer to Baxter.

The President recommended that all five of the detainees involved in the
transfer be paid $15 000 in compensation, as well as an additional $5 000 to Mr
Okoye and Mr Nguyen in respect of the additional findings noted above. The
President further recommended that the Commonwealth provide formal apologies to
the detainees, as well as take steps to improve human rights training for
relevant personnel. The President also endorsed a detailed series of
recommendations contained in a separate independent investigation into the
incident, which were aimed primarily at improving policies and procedures
relating to the transfer of detainees.

The report is available on-line at
www.humanrights.gov.au/legal/HREOCA_reports/hrc_report_39.html

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5.3 INTERVENTIONS AND LEAVE GRANTED TO INTERVENE

HREOC has a statutory function of intervening, with the leave of the Court,
in proceedings that involve issues of human rights, equal opportunity in
employment and age, race, sex, marital status, pregnancy and disability
discrimination.

HREOC’s intervention functions are contained in:

  • sections 11(1)(o) and 31(j) of the Human Rights and Equal Opportunity
    Commission Act;
  • section 20(1)(e) of the Racial Discrimination Act;
  • section 48(1)(gb) of the Sex Discrimination Act;
  • section 67(1)(l) of the Disability Discrimination Act; and
  • section 53(1)(g) of the Age Discrimination Act.

In deciding whether to seek leave to intervene, HREOC considers whether the
human rights or discrimination issues are significant and central to the
proceedings and whether these issues are being addressed adequately by the
parties to the proceedings.

The guidelines that HREOC uses to determine if it will seek leave to
intervene in a matter are publicly available on HREOC’s website at
www.humanrights.gov.au/legal/intervention_info.html

Through its interventions, HREOC seeks to promote human rights principles and
encourage the development of Australian law in line with human rights standards.
The intervention functions also serve an important educational purpose, by
bringing a human rights perspective to the attention of courts and parties to
litigation. HREOC seeks to further pursue this educational purpose by placing
all of its submissions on its website. These are available at
www.humanrights.gov.au/legal/intervention_info.html

In 2007-08, HREOC was involved as intervener in four matters.

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5.3.1 Qantas Airways Ltd v Gama

This matter was an appeal to the Full Federal Court by Qantas Airways Ltd
(‘Qantas’) and cross appeal by Mr Gama from a decision of Raphael
FM: Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767.

Raphael FM found that Mr Gama had been discriminated against by Qantas on the
basis of his race and disability. His Honour did not, however, find in favour of
Mr Gama in relation to all of his allegations of discrimination.

The main focus of HREOC’s submissions in the appeal was the standard of
proof in discrimination proceedings and the ‘principle in Briginshaw’. HREOC submitted that discrimination cases should be
treated similarly to other civil proceedings, rather than starting from a
position of discrimination being an ‘inherently serious’ allegation
requiring evidence of a higher probative value, as had been held in some cases.
HREOC also addressed an issue raised by Qantas in the appeal that a single
racist remark was insufficient to constitute discrimination.

The Full Federal Court dismissed both the appeal and cross appeal (with the
exception of one of Raphael FM’s findings, which did not impact upon the
result). The separate judgment of Branson J (with whom French and Jacobson JJ
generally agreed) clarified the application of Briginshaw, consistently
with HREOC’s suggested approach.

Also consistent with HREOC’s submissions, the Court accepted that a
single racist remark in the workplace could constitute discrimination, even in
the absence of additional evidence of adverse effects being felt within the
workplace, such as lack of promotions or training. The Court held that, whilst
it would depend on the facts of the case, the infliction of a racist insult was
sufficient to adversely affect the conditions of employment so as to give rise
to an act of discrimination.

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5.3.2 Proceedings in the Family Court of Australia concerning medical
treatment for a child

The applicants in this matter sought an order from the Family Court that they
may lawfully authorise the medical treatment of their child, in respect of the
condition of transsexualism, without an order of a court. Such treatment is
proposed to include both reversible and irreversible treatment of a hormonal
nature.

The proceedings therefore raised issues that include the scope of parental
power to consent to such treatment. In the alternative, the parents sought an
order that the court authorise such treatment and empower them to provide the
authorities and consents that are necessary for the treatment to proceed.

HREOC intervened to make submissions on important issues of human rights,
especially in relation to those rights recognised in the Convention on the
Rights of the Child
. HREOC was granted leave to intervene on 7 March 2006
and the matter was heard by a single judge of the Family Court from 5-9 November
2007.

Judgment was reserved at the time of publication.

Note that pursuant to s 121 of the Family Law Act 1975 (Cth), HREOC is
unable to disclose any details that may disclose the identities of the parties
to the proceedings.

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5.3.3 R v Wei Tang

HREOC was granted leave to intervene in the High Court in The Queen v Wei
Tang
on 14 May 2008.

HREOC sought leave to make submissions on a point of legal principle –
the correct interpretation of the definition of slavery under the Criminal
Code Act 1995 (Cth)
in light of international prohibition on all forms of
slavery. HREOC’s submission did not comment on the facts of Wei
Tang’s case.

The slavery offences in the Criminal Code were introduced in 1999 and are
intended to implement Australia’s international treaty obligations to
prohibit all forms of slavery.

The definition of slavery in the Criminal Code is based (in large part) on
the definition of slavery in the 1926 Slavery Convention and the 1956
Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Practices Similar to Slavery.

HREOC made written and oral submissions that the definition of slavery in the
Code should be interpreted consistently with international law. HREOC argued
international law recognises that the absolute prohibition on slavery has
evolved from the historical concept of ‘chattel slavery’ to
encompass various contemporary forms of slavery which are based on the exercise
of any or all of the powers attaching to the right of ownership.

HREOC submitted that the indicia of contemporary forms of slavery may include
the restriction of freedom of movement and the denial of personal autonomy.
Deception, physical or psychological abuse, and false promises may render
consent either irrelevant or impossible.

Judgment was reserved at the time of publication.

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5.3.4 Bropho v Western Australia

HREOC was granted leave by the Full Federal Court to intervene in this matter
on14 November 2007. The proceedings were an appeal against the decision of
Nicholson J in the Federal Court of Australia in Bropho v State of Western
Australia
[2007] FCA 519.

The applicant, on behalf of the members of the Swan Valley Nyungah Community
Aboriginal Corporation, claimed that the Reserves (Reserve 43131) Act 2003 (WA) (‘Reserves Act’) and actions taken under that Act by an
administrator breached sections 9, 10 and 12(1)(d) of the Racial
Discrimination Act 1975
(Cth). The effect of the Reserves Act and the
actions of the administrator was to close the Reserve.

At first instance, Nicholson J found that neither the Reserves Act nor the
administrator’s actions were racially discriminatory. This decision was
upheld on appeal. However, the Court corrected certain errors in the approach to
sections 9 and 10 of the Racial Discrimination Act that had been identified by
the submissions of HREOC.

The Court said HREOC’s submissions were ‘helpful’ and had
‘considerable force’. Significantly, the Court agreed with HREOC
that the approach of Nicholson J to determining the content of the human right
to own and manage property for the purposes of section 10 was too narrow. The
Court found human rights to own property should be interpreted in light of
international law which recognise the proprietary nature of communal rights in
several Latin American Indigenous communities.

Ultimately, the Court held that section 10 did not apply to the Reserves Act
because the property rights in question were not absolute. Therefore, it was not
inconsistent with section 10 to limit property rights in accordance with the
legitimate public interest to protect the safety and welfare of women residing
at the Reserve.

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5.4 AMICUS CURIAE

Section 46PV of Human Rights and Equal Opportunity Commission Act gives HREOC
Commissioners an amicus curiae (‘friend of the court’)
function. The role of an amicus curiae is to provide special assistance
to the court in resolving issues raised by the case and to draw attention to
aspects of the case that might otherwise have been overlooked.

Under this function, 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 seek the permission of the Federal Court or Federal
Magistrates Court, to assist the court as amicus curiae in the hearing of
unlawful discrimination applications.

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

As with HREOC’s intervention functions, the Commissioners attempt to
enhance the educational role of their amicus curiae function by placing
all submissions on HREOC’s website.

During 2007-08, Commissioners were granted leave to appear as amicus
curiae
in three matters, which are summarised below.

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5.4.1 Vijayakumar v Qantas

The applicant, Mr Vijayakumar, requires the use of a number of disability
aids which, cumulatively, weigh approximately 20 kilograms. He purchased a
flight with Qantas from Sydney to Mumbai (India) return. The conditions of
carriage included a term which limited him to carrying one mobility aid free of
charge, but any other aids were included as part of his normal baggage
limit.

Mr Vijayakumar alleged that, upon his return flight home, Qantas staff in
India strictly applied the above terms of his conditions of carriage, by
requiring him to pay excess baggage fees for his disability aids. As Mr
Vijayakumar could not afford these fees, he was effectively required to abandon
most of his personal belongings at the airport.

As a preliminary point, Qantas challenged the jurisdiction of the court to
hear the matter on the basis that the alleged discrimination occurred in India
and was therefore outside the territorial scope of the Disability
Discrimination Act 1992
(Cth). By contrast, Mr Vijayakumar alleged that the
relevant discrimination occurred by virtue of the conditions of his flight,
which was purchased in Australia.

The Acting Disability Discrimination Commissioner made written and oral
submissions in the interlocutory hearing before Scarlett FM dealing with the
jurisdictional challenge. The Commissioner submitted that no jurisdictional
issue arose if part of Mr Vijayakumar’s case involved alleged
discrimination occurring within Australia. In particular, the relevant sections
of the Disability Discrimination Act (sections 23 and 24) are breached upon the
communication or imposition of discriminatory terms upon which the premises are
made available or the service is provided which, in this case, appeared to have
occurred in Australia, not India.

At the time of publication, the decision of Scarlett FM had not been handed
down.

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5.4.2 Darina Maslauskas v Queensland Nursing Council

The applicant alleged that she had been discriminated against by the
Queensland Nursing Council (‘QNC’) on the ground of an imputed
disability (a florid psychotic illness and delusional disorder) by suspending
her registration as a nurse contrary to section 19 of the Disability
Discrimination Act.

On 20 February 2008, the Acting Disability Discrimination Commissioner was
granted leave to appear as an amicus curiae. The Commissioner had filed
written submissions in relation to the following issues raised in a summary
dismissal application that had been filed by the respondent:

  1. the application of the Disability Discrimination Act to state qualifying
    bodies that are alleged to have breached section 19 of the Disability
    Discrimination Act;
  2. the factors that a court should take into account when considering an
    application for summary dismissal; and
  3. the proper ‘comparator’ for the purposes of direct disability
    discrimination.

On 16 April 2008, prior to the hearing of the summary dismissal application,
the applicant decided not to proceed with the matter and, by consent, the
application was dismissed with no order as costs.

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5.4.3 Maddison v Qualtime Association Inc

This matter involved two related proceedings brought by two members of
Qualtime Association Inc, an incorporated, not for profit, community-based
association which provides respite and support services to people with
disabilities in the northern suburbs of Brisbane. The application concerned the
decision by Qualtime to cancel/revoke the membership of the applicants on the
asserted basis of their lack of legal capacity due to them having an
intellectual disability. The applicants alleged that this constituted disability
discrimination.

The Acting Disability Discrimination Commissioner was granted leave to appear
in the matter to make submissions as amicus curiae on the correct interpretation
and application of the Disability Discrimination Act, particularly section 27
and the relationship between sections 5 and 6. The Commissioner also proposed to
address the broader issues arising in the case relating to the relationship
between disability discrimination and legal capacity, as well as the
relationship between the Disability Discrimination Act and the Guardianship
and Administration Act 2000
(Qld).

The matter settled on confidential terms shortly prior to hearing.

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5.5 REVIEW OF ADMINISTRATIVE DECISIONS MADE BY HREOC

People affected by administrative decisions made by HREOC may be entitled to
seek a review of those decisions before a court or tribunal. HREOC staff are
also sometimes party to such proceedings.

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5.5.1 Judicial review

Judicial review of HREOC decisions generally involves an application to the
Federal Court or the Federal Magistrates Court pursuant to the Administrative
Decisions (Judicial Review) Act 1977
(Cth).

In accordance with established legal principle, HREOC (as decision maker)
usually does not play an active role in those proceedings. Instead, HREOC agrees
to be bound by the decision of Court and leaves the substantive parties (usually
the complainant and respondent to a complaint that was before HREOC) to argue
the matter in Court.

HREOC was a respondent to 10 applications brought under the Administrative
Decisions (Judicial Review) Act in 2007-08. All applications were
unsuccessful.

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5.5.2 Merits review

Some decisions of HREOC or HREOC staff (acting under instruments of
delegation) are subject to merits review by the Administrative Appeals Tribunal.
These include decisions made under the Freedom of Information Act 1982 (Cth), and decisions on applications for temporary exemptions under section
44 of the Sex Discrimination Act, section 55 of the Disability Discrimination
Act and section 44 of the Age Discrimination Act.

There were no new applications for merits review of HREOC decisions during
the reporting period.

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5.6 INTERNATIONAL ACTIVITIES

5.6.1 China-Australia Human Rights Technical Cooperation Program:
Women’s Law Workshop

From 8-11 April 2008, a senior lawyer participated in a Women’s Law
Workshop held in Hefei, Anhui Province in China. The workshop was organised by
the All China Women’s Federation and the International Projects Unit in
HREOC as part of the China-Australia Human Rights Technical Cooperation
Program
. The workshop was attended by Chinese participants from a range of
women’s federations, government agencies and academic institutions with
responsibility for implementing the Law of the People’s Republic of China
on the Protection of Rights and Interests of Women.

Over the course of four days, presentations were conducted by a range of
Chinese and Australian experts in the protection of women’s rights.
Participants also engaged in group discussions in women’s rights and
gender awareness. The HREOC representative presented a paper on the Sex
Discrimination Act 1984
(Cth), the process for dealing with complaints made
under that Act and the work of the Sex Discrimination Commissioner.

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5.7 EDUCATION AND PROMOTION

The Legal Section plays a significant role in human rights legal education
and the promotion of human rights principles. This is done in a number of ways,
including through publishing regular journal articles, presenting seminar papers
and speaking as guest lecturers to university students on discrimination and
human rights law issues.

Two of the Legal Section’s significant ongoing human rights education
projects are listed below:

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5.7.1 Federal Discrimination Law

On 26 June 2008, HREOC launched the 2008 edition of its publication Federal Discrimination Law, including the on-line version, FDL
On-line
. The publication was launched by the Hon. Justice Susan Crennan at a
function in HREOC’s offices in Sydney.

Federal Discrimination Law provides a comprehensive overview of the
case law that has been decided in the field of federal unlawful discrimination
law. In addition to detailed analysis of discrimination law jurisprudence, the
publication also covers issues of practical concern for litigants and
practitioners, with chapters on procedural issues, damages and remedies, and
costs.

For details, see www.humanrights.gov.au/legal/FDL

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5.7.2 Human Rights Law Bulletin and Seminars

The Legal Section continues to publish its Human Rights Law Bulletin,
providing an update on domestic and international human rights law. The Human
Rights Law Bulletin
is published on HREOC’s website and distributed
through the Legal Section’s e-mail list (see
www.humanrights.gov.au/legal/mailing.html to subscribe).

The Legal Section also organises Human Rights Law seminars on topics of
current interest in domestic or international human rights law. The seminars and
speakers for 2007-08 were as follows:

Photo of Hon. John von Doussa QC and Hon. Justice Susan Crennan
* * * * * * * * * * * * * * * *
HREOC President, The Hon. John von Doussa QC
and Hon. Justice Susan Crennan browsing Federal
Discrimination Law
at the launch on 26 June 2008

Photo of the Hon. Robert McClelland MP
* * * * * * * * * * * * * * * *
The federal Attorney-General, the Hon. Robert
McClelland MP, was one of two speakers at the
Human Rights
Law seminar on 23 May 2008 about
Australi's international human rights engagement

17 September 2007: The Northern Territory Emergency Response Legislation:
a Human Rights Analysis

This seminar focused on the Northern Territory Emergency Response. The panel
consisted of two speakers; Ms Olga Havnen from the Combined Aboriginal
Organisations of the Northern Territory and Dr Sarah Pritchard, a NSW Barrister.
The session was chaired by Social Justice Commissioner Tom Calma.

7 April 2008: Homelessness and Human Rights

This seminar examined a human rights approach to homelessness. The panel
consisted of three speakers: Cassandra Goldie, Director of the Sex and Age
Discrimination Unit at HREOC, Robin Banks, Executive Director of the Public
Interest Advocacy Centre and Sue Cripps, Executive Director of Homelessness NSW.
The session was chaired by the Human Rights Commissioner, Graeme Innes.

23 May 2008: Australia’s International Human Rights Engagement

This seminar explored the possibilities for Australia’s engagement with
international human rights mechanisms. It featured speeches by the federal
Attorney-General, Robert McClelland and Professor Gillian Triggs, Dean of the
University of Sydney Law School. The session was chaired by HREOC President John
von Doussa QC.

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