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Annual Report 2008-2009: Chapter 5

Annual Report 2008 - 2009

Chapter 5:
Legal Services

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5.1 Responsibilities
and overview

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

  • advising on human rights, discrimination and other laws relevant to the work
    of the Commission
  • 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 the Commission 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 the Commission 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 the Commission to consider applications for exemptions under the
    Sex Discrimination Act and Age Discrimination Act
  • responding on behalf of the Commission to applications for access to
    information under the Freedom of Information Act 1982 (Cth)
  • assisting in international technical assistance work undertaken by the
    Commission.

5.2 Interventions
and leave granted to intervene

The Commission has a 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.

The Commission’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
  • section 53(1)(g) of the Age Discrimination Act.

In deciding
whether to seek leave to intervene, the Commission considers whether the human
rights or discrimination issues are significant and central to the proceedings
and whether these issues are likely to be addressed adequately 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/submissions_court/intervention/interventions_in_court_proc.html.

Through its interventions, the Commission 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 educative
purpose, by bringing a human rights perspective to the attention of courts and
parties to litigation. The Commission seeks to pursue this educational purpose
further by placing all of its submissions on its website. These are available
at: www.humanrights.gov.au/legal/submissions_court/index.html.

Between 1 July 2008 and 30 June 2009, the Commission intervened in five new
matters and was involved in two matters that continued from the previous
financial year.

5.2.1 Inquest into the
death of Ian Ward

The Commission was granted leave to intervene in the inquest into the death
of Mr Ian Ward in Kalgoorlie. Mr Ward died of heatstroke while being
transported from Laverton to Kalgoorlie on a hot day in the rear of a van,
having been remanded in custody for drink driving.

The Commission’s submissions focused on systemic human rights issues
connected with the death, particularly the impact of the practices of police and
custodial officers on Mr Ward’s right to humane and dignified treatment,
his right to be free from arbitrary detention and his right to life. This
included: the inappropriateness of the decision by police to arrest Mr Ward and
refuse bail; the discharge of the duty of care to Mr Ward by the officers
transporting him; the inappropriateness of the design and condition of the
vehicle for prisoner transports across long distances in desert conditions; the
inadequacies of relevant policies, procedures and training, including the
failure of the pre-departure vehicle checklist to include a check on
air-conditioning; and the inadequacy of the police investigation into Mr
Ward’s death.

The Coroner handed down his findings in June 2009. The Coroner found that
Mr Ward’s death was wholly avoidable and had been contributed to by
the custodial officers, the custodial contractor, GSL, and the WA Department of
Corrective Services.

The Coroner also found, consistent with the Commission’s submissions,
that the treatment of Mr Ward breached Australia’s international legal
obligations.

The Coroner made 14 recommendations aimed at systemic improvements, including
that the Inspector of Custodial Services be empowered to issue a ‘show
cause’ notice in cases where the Inspector is aware of issues relating to
the human rights and safety of persons in custody.

Photo of Ms Emily Gerrard

...............
The work of the Commission’s legal section includes education and
promoting awareness of developments in human rights and discrimination law. Ms
Emily Gerrard, lawyer, was one of the speakers at a Commission seminar about
Human Rights and Climate Change in August 2008.

5.2.2 Inquest into the
death of David Gurralpa

In February 2009, the Commission was granted leave to intervene in the
inquest into the death of Mr David Gurralpa in Darwin.

Mr Gurralpa died of a sudden heart attack while in police custody, either
during or immediately after an intense struggle with the police. During this
struggle the police held Mr Gurralpa in a ‘prone restraint’
position.

The Commission’s submissions focused on the systemic human rights
issues surrounding the death of Mr Gurralpa. These included the dangers involved
in the police use of the prone restraint; the risk factors that make certain
persons more susceptible to death following the prone restraint; and the need
for police to monitor the health of people where practicable during the
restraint, as well as immediately after the use of the prone restraint.

The Coroner handed down his findings in June 2009. The Coroner found that the
struggle between the police and Mr Gurralpa, particularly while the police were
using the prone restraint, was a material contributing factor to his death.

The Coroner adopted most of the Commission’s suggested recommendations,
which included recommendations for police training in the dangers of the prone
restraint; the risk factors associated with the prone restraint; and the need to
monitor a person’s health, if practical, during and certainly immediately
after a person is held in the restraint position.

5.2.3 Inquest into the
death of Robert Plasto-Lehner

In February 2009, the Commission was granted leave to intervene in the
inquest into the death of Mr Robert Plasto-Lehner, which was heard concurrently
with the inquest into the death of Mr Gurralpa (above).

Mr Plasto-Lehner died at Royal Darwin Hospital after being held face down on
the ground in a prone restraint by several police officers and hospital security
guards. Mr Plasto-Lehner had been brought to the hospital by the police for a
mental health assessment. He was forced onto the ground after attempting to
leave the hospital building, having repeatedly requested that he be able to go
outside for some fresh air and to have a cigarette. As a result of being held in
the prone restraint, Mr Plasto-Lehner stopped breathing and later died.

The Commission intervened to make submissions about the systemic human rights
issues surrounding Mr Plasto-Lehner’s death. These issues included: the
dangers and risk factors associated with the use by police of the prone
restraint; the sufficiency of police training and the appropriateness of police
practice in respect of the use of prone restraint; the adequacy of police
training in dealing with mentally ill persons; and the adequacy of the police
investigation into the incident.

In June 2009, the Coroner found that the use of the prone restraint was a
material contributing factor in Mr Plasto-Lehner’s death. The Coroner was
critical of the police’s conduct, describing Mr Plasto-Lehner’s
death as involving ‘a litany of serious errors and misjudgements that led
to the tragic and unnecessary death of the Deceased’. The Coroner also
reported that a crime of assault may have been committed against Mr
Plasto-Lehner.

The Coroner adopted many of the Commission’s suggested recommendations
in relation to police training in the dangers and risk factors of the prone
restraint, and the need to monitor a person’s health during and
immediately after the use of the restraint. The Coroner also adopted the
Commission’s suggested recommendations in relation to police training on
the treatment of mentally ill persons.

5.2.4 Morton v
Queensland Police Service

These proceedings before the District Court in Townsville involved an appeal
against a conviction of possessing more than a prescribed quantity of alcohol in
a prescribed area, namely Palm Island, pursuant to section 168B of the Liquor
Act 1992
(Qld).

The appellant, Ms Morton, an Aboriginal woman from Palm Island, argued that
the provisions of the Liquor Act 1992 (Qld) and the Liquor Regulations
2002 (Qld) are invalid on the basis that they are inconsistent with
section 10(1) of the Racial Discrimination Act.

The Commission was granted leave to appear as amicus curiae. The
Commission made submissions on a range of issues, including the principles of
interpretation relevant to the Racial Discrimination Act, the proper approach to
section 10 of the Racial Discrimination Act and the exemption for ‘special
measures’ in section 8(1) of the Racial Discrimination Act. ‘Special
measures’ are measures taken for the ‘sole purpose of securing the
adequate advancement of certain racial or ethnic groups or individuals’ in
order that they may enjoy and exercise human rights and fundamental freedoms
equally with others.

The Court held that section 10, which protects the right to equality before
the law, was not ‘invoked’ by the Queensland legislation because the
legislation operated by reference to a particular area (Palm Island) rather than
race. In the alternative, the legislation was a special measure.

5.2.5 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.

The Commission 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
. The Commission was granted leave to intervene in
March 2006 and the matter was heard by a single judge of the Family Court in
November 2007.

Judgment remains reserved at the time of publication.

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

5.2.6 R v Wei
Tang

The Commission was granted leave to intervene in the High Court in R v Wei
Tang
in May 2008. Ms Wei Tang, a Melbourne brothel owner, was convicted in
the Victorian County Court of ‘using’ and ‘possessing’
five Thai women as slaves. Ms Tang successfully appealed against her
conviction on the ground that the trial judge had misdirected the jury. The
Crown appealed to the High Court of Australia, which considered the elements of
the offence slavery and how to interpret the definition of slavery.

The Commission made submissions about the correct interpretation of the
definition of slavery under the Criminal Code Act 1995 (Cth) in
light of the international jurisprudence about the meaning of slavery.

The Commission 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 of or all of the powers attaching to the right of
ownership.

The Commission relied on the International Criminal Tribunal for the Former
Yugoslavia case, Prosecutor v Kunarac, to identify the indicia of
contemporary forms of slavery. These indicia include the control of movement,
psychological control, and the denial of personal autonomy. Deception, physical
or psychological abuse, and false promises may render consent either irrelevant
or impossible.

In August 2008, the High Court handed down a majority decision upholding the
Crown appeal against the Victorian Court of Appeal’s decision to quash
Ms Tang’s conviction and to order a retrial.

The High Court held that the definition of ‘slavery’ in the
Criminal Code is not restricted to historical concepts of ‘chattel
slavery’, where a person is treated like the property of another without
control over any aspect of their life. The question of whether the powers
exercised by the accused can be described as powers attaching to the right of
ownership will depend on the nature and extent of the powers.

Consistent with the approach advocated by the Commission, the Court focused
on a range of factors to identify whether an offence of slavery had occurred.
The Court accepted that the indicia of slavery identified in Prosecutor v
Kunarac
can help distinguish between harsh and exploitative employment
arrangements and the condition of slavery. The Court also added that the
commodification of an individual, by treating him or her as an object of sale
and purchase, is a powerful indicator of slavery.

5.3 Amicus
curiae

Guidelines for the exercise of the Commission’s amicus curiae function are publicly available on the Commission’s website at:
www.humanrights.gov.au/legal/submissions_court/amicus/amicus_guidelines….

As with the Commission’s intervention functions, the Commissioners
attempt to enhance the educational role of their amicus curiae function
by placing all submissions on the Commission website. These are available at:
www.humanrights.gov.au/legal/submissions_court/index.html.

During 2008-09, Commissioners did not seek leave to appear as amicus
curiae
in any matters. The Disability Discrimination Commissioner was
involved in one matter which was continued from the previous financial year,
summarised below.

5.3.1 Vijayakumar v
Qantas

The applicant, Mr Vijayakumar, alleges that he was discriminated against by
Qantas when he was required to pay excess baggage fees for his disability aids.
The events took place in Mumbai (India) on the return journey of a ticket
purchased in Australia for travel between Sydney and Mumbai. Mr Vijayakumar
claims that he could not afford the fees imposed and was effectively required to
abandon most of his personal belongings at the airport.

Qantas has 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. By contrast,
Mr Vijayakumar argues that the relevant discrimination occurred by virtue of
the conditions of his flight, which was purchased in Australia.

The 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 remains reserved.

5.4 Review
of administrative decisions

made by the Commission

People affected by administrative decisions made by the Commission may be
entitled to seek a review of those decisions before a court or tribunal.

5.4.1 Judicial
review

Judicial review of Commission decisions can be sought by application to the
Federal Court or the Federal Magistrates Court under the Administrative
Decisions (Judicial Review) Act 1977
(Cth).

In accordance with established legal principle, the Commission (as decision
maker) usually does not play an active role in those proceedings. This is to
avoid a perception of bias in the event that a matter is remitted to the
Commission for further determination. Instead, the Commission agrees to be bound
by the decision of the Court and leaves the substantive parties (usually the
complainant and respondent to a complaint that was before the Commission) to
argue the matter.

The Commission was a respondent to two applications brought under the
Administrative Decisions (Judicial Review) Act in 2007-08. One of those
applications was unsuccessful, the other was ongoing at the end of the reporting
period.

5.4.2 Merits
review

Some decisions of the Commission or its 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 was one application for merits review of a Commission decision during
the reporting period. It was ongoing at the end of the reporting period.

5.5 Education
and promotion

The Legal Section plays a significant role in human rights legal education,
including through publishing regular journal articles, presenting seminar papers
and speaking as guest lecturers to university students on discrimination and
human rights law issues.

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

Photo of Mr Bret Walker SC

...............
At a Commission legal seminar held in October 2008, Mr Bret Walker SC spoke
about Modern Day Slavery in Australia. Mr Walker appeared as Senior Council for
the Commission in R v Wei Tang.

5.5.1 Federal
Discrimination Law

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.

Following the launch of the 2008 edition Federal Discrimination Law,
the Legal Section has periodically updated the online version, FDL
Online,
to take into account recent developments in the law. Users can
register for free updates via the Commission’s website at:
www.humanrights.gov.au/legal/FDL.

5.5.2 Workplace
Discrimination Seminar Series

Members of the Legal Section presented seminars on workplace discrimination
in all capital cities to promote the 2008 edition of Federal Discrimination
Law
.

5.5.3 Human Rights Law
Seminars

The Legal Section organises Human Rights Law Seminars on topics of current
interest in domestic or international human rights law. The seminars and
speakers for 2008-09 were as follows:

20 August 2008: Climate Change and Human Rights

The former President, John von Doussa QC, presented this seminar with Ms
Emily Gerrard, who discussed the impact of climate change on Indigenous rights.

16 October 2008: Modern Day Slavery in Australia: R v Wei Tang

Commission President, Catherine Branson QC, chaired this seminar in which Mr
Bret Walker SC provided comment on the High Court’s decision in R v Wei
Tang, and Sex Discrimination Commissioner Elizabeth Broderick spoke about
current issues in the area of people trafficking.

11 December 2008: Human Rights, Equality and Fundamental Freedoms:
What
Difference does a Human Rights Act Make?

Lord Bingham of Cornwall, former Senior Law Lord of the House of Lords,
discussed the impact of the UK Human Rights Act, and Professor David Kinley, the
Chair in Human Rights Law at the University of Sydney, provided a reply from an
Australian perspective.

17 February 2009: Human Rights Acts and Parliamentary Sovereignty

Mr Murray Hunt, Legal Adviser to the UK Joint Committee on Human Rights,
presented this session, chaired by the President, Catherine Branson QC. The
seminar covered the operation of the UK Human Rights Act 10 years after its
enactment and the impact of the UK Human Rights Act on the UK Parliament.

From left to right: David Kinley, Lord Bingham, Graeme Inness

...............
In December 2008, Professor David Kinley, Chair in Human Rights at the
University of Sydney Faculty of Law and Lord Bingham, former Senior Law Lord of
the House of Lords, were introduced as speakers by Human Rights Commissioner, Mr
Graeme Innes, at the seminar, Human Rights, Equality and Fundamental
Freedoms: What Difference Does a Human Rights Act Make?

5 March 2009: A Human Rights Act, the Courts and the Constitution

The Hon Michael McHugh AC, QC, distinguished jurist and former Justice of the
High Court of Australia, presented his views on human rights in Australia and
their protection through a Human Rights Act. The seminar was chaired by the
President, Catherine Branson QC.

28 April 2009: The Constitution and a Human Rights Act

This seminar was conducted in conjunction with the Centre for Comparative
Constitutional Studies at the University of Melbourne. It considered potential
Constitutional issues raised by a Human Rights Act. The seminar was chaired by
the President, Catherine Branson QC, and featured a panel of Professor Adrienne
Stone, Mr Mark Moshinsky SC and Associate Professor Kristen Walker.

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