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HRC Report No. 13

HUMAN RIGHTS
AND EQUAL OPPORTUNITY COMMISSION

Report of an
Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary
to Human Rights

HRC Report No. 13

Copyright © Commonwealth of Australia 2001
Copying is permissible with acknowledgment of the authorship of the Human
Rights and Equal Opportunity Commission, Sydney, 2001.


CONTENTS

1. Introduction

2. The
inquiry

2.1 The
complaints

2.2 The
Department's response

2.3 Preliminary
finding

2.4 Further
submissions

-
Written submissions of the complainants
- Written submissions of the Department

3. Notice of findings and recommendations of the
Commission

4. Findings
and reasons for findings

4.1 Is
there an act or practice?

4.2 Is
the act or practice inconsistent with or contrary to any human
right?

- International jurisprudence and commentary

- Domestic case law
- Discussion and reasons

5. Recommendations

6. The
Department's reply to the findings and recommendations

Endnotes

Appendix
A:

Functions of the Human Rights and Equal Opportunity
Commission in Relation to Human Rights


1. INTRODUCTION

This report to the
Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity
Commission (Commission) under the Human Rights and Equal Opportunity
Commission Act
1986 (Cth) (the HREOC Act) into complaints concerning
acts or practices inconsistent with or contrary to human rights. A description
of the Commission's jurisdiction in this regard is set out at Appendix
A to this report.

2. THE
INQUIRY

2.1
The complaints

This report concerns
an inquiry into complaints made by Mr Vo Tuan Kiet, Mr Le Hieu Trong,
Mr Le Van Chung, Mr Ly Minh Thanh, Mr Mai Ngoc Cuong, Mr Pham Thanh Cuc,
Mr Nguyen Thanh Lam, Mr Nguyen Thanh Vu, Mr Pham Duc Tam and Mr Tran Thanh
Tuan. The complaints are the same in all material respects.

Each of the complainants
came to Australia from Vietnam and was granted permanent residency. The
complainants were all convicted of criminal offences and have served criminal
sentences in New South Wales. They have been served with deportation orders
by the Department of Immigration and Multicultural Affairs (the Department).
Each of the complainants is currently being held at the Parramatta Correctional
Complex and is awaiting deportation to Vietnam.

The complainants
allege that their human rights are being breached because they have all
served their sentences but continue to be detained in prison because their
deportation to Vietnam has been delayed. The complainants are concerned
about the continuing and indefinite nature of their detention.

2.2
The Department's response

In its initial response
to the Commission's investigation, the Department denied that the complainants
are being detained either unlawfully or arbitrarily. It stated that the
detention of the complainants has at all times been in accordance with
Australian law and relevant international instruments.

The Department stated
that all persons subject to a deportation order are detained pursuant
to section 253 of the Migration Act 1958 (Cth) (the Migration Act).
The main test applied in each case is that of balance between the support
that a deportee may have in the community, as opposed to the risk that
person presents to the community. Primary consideration is given to the
Minister's General Direction on criminal deportation that clearly states
that deportees cannot expect to be at liberty after the conclusion of
their sentence until deportation occurs. Following the conclusion of their
sentences, all prisoners are held in remand centres, of which the Parramatta
Correctional Complex is one. The respondent stated that the decision to
move some of the detainees from the Silverwater Remand Centre was a decision
of NSW Corrective Services.

The Department stated
that the complainants' sentences were completed and they were served with
deportation orders on the following dates:

Name

Sentence
completed

Deportation
order

Mr
Le Van Chung
17
February 1998
8
April 1997
Mr
Ly Minh Thanh
14
May 1998
9
June 1997
Mr
Vo Tuan Kiet
18
June 1998
20
August 1997
Mr
Le Hieu Trong
4
September 1998
9
June 1997
Mr
Nguyen Thanh Lam
14
December 1998
28
September 1998
Mr
Tran Thanh Tuan
2
March 1999
4
November 1997
Mr
Nguyen Thanh Vu
10
March 1999
2
November 1998
Mr
Pham Thanh Cuc
23
April 1999
28
March 1998
Mr
Mai Ngoc Cuong
27
July 1999
4
November 1997
Mr
Pham Duc Tam
27
October 1999
21
June 1998

The Department provided
the following background information to each of the complainant's situations:

Name

Type of visa

Date
arrived

Age
on arrival

Mr
Le Van Chung
Refugee
18
October 1990
11
Mr
Ly Minh Thanh
Refugee
6
January 1994
11
Mr
Vo Tuan Kiet
Refugee
26
May 1983
16
Mr
Le Hieu Trong
Refugee
26
May 1983
16
Mr
Nguyen Thanh Lam
Family
migration
18
March 1992
19
Mr
Tran Thanh Tuan
Refugee
25
May 1984
24
Mr
Nguyen Thanh Vu
Refugee
27
June 1991
17
Mr
Pham Thanh Cuc
Refugee
21
March 1995
25
Mr
Mai Ngoc Cuong
Unknown
2
April 1986
13
Mr
Pham Duc Tam
Migrant
visa
22
May 1991
19

Name

Conviction

Mr Le Van Chung Supply prohibited
drugs, goods in custody
Mr Ly Minh Thanh Assault with
intention to steal, malicious wounding
Mr Vo Tuan Kiet Robbery whilst
armed, robbery
Mr Le Hieu Trong Supply prohibited
drug
Mr Nguyen Thanh
Lam
Possessing prohibited
drug
Mr Tran Thanh
Tuan
Supply prohibited
drug
Mr Nguyen Thanh
Vu
Supply prohibited
drug
Mr Pham Thanh
Cuc
Robbery in company
Mr Mai Ngoc
Cuong
Supply prohibited
drug
Mr Pham Duc
Tam
Supply prohibited
drug

The Department stated
that the reason that deportation has been delayed is that the Government
of Vietnam has not provided travel documents to the complainants authorising
their return to Vietnam. It stated that up until 1996 the Vietnamese Government
was not receptive to requests to deport Vietnamese criminals to Vietnam.
However, since that time the Vietnamese Government has agreed, in principle,
to implement its international obligations to receive back its nationals.
The Department stated that a reason for delay is that the Vietnamese Government
must reassure itself of the identity of the person being returned, which
is a lengthy process and one which the Department asserts has been further
delayed by some of the deportees not cooperating with Departmental officers.

The Department stated
that it anticipated that the complainants will be returned to Vietnam.
It said that Vietnam is a signatory to the International Covenant on Civil
and Political Rights (ICCPR) and as such has accepted its obligation to
allow the return of its citizens. The Department also noted that parallel
to its efforts to progress these matters on a case-by-case basis, the
Commonwealth has commenced negotiation with the Vietnamese Government
concerning the signing of a memorandum of understanding on this issue
which the Vietnamese Government is currently considering. The Department
stated that while a specific time frame has not been agreed, it is confident
that the agreement will be signed, and the real expectation is that a
mechanism to return Vietnamese nationals will be established.

The Department stated
that the detention of the complainants is pursuant to the discretionary
powers in section 253 which also makes detention limited to the time until
the person is removed from Australia and so is finite. It noted that the
situation of each complainant is reviewed on a monthly basis and so is
not arbitrary.

The Department provided
to the Commission a number of documents relating the complainants' deportation
and detention at the Parramatta Correctional Complex.

2.3
Preliminary finding

On 26 September 2000
I wrote to the Department and the complainants and advised that I had
made a preliminary finding that the acts and practices complained of by
the complainants amounted to a breach of human rights. I enclosed a report
containing my preliminary finding.

2.4
Further submissions

Following this preliminary
finding I made directions for further submissions by the parties. Pursuant
to section 27 of the Act I invited the parties to make submissions orally
or in writing or both. The parties elected to make written submissions.

Written submissions of the
complainants

The Commission received
a number of written submissions and additional documents from some of
the complainants. Mr Vo provided submissions to the Commission on behalf
of all the complainants. In particular, he provided the Commission with
copies of his latest requests for review of his detention and with the
reasons of the Department for refusing these requests. He submitted that
he was being kept in custody in circumstances in which there was a "practical
impossibility of effecting the deportation within a reasonable time".
Mr Trong Hieu Le also provided written submissions to the Commission outlining
the conditions of his detention.

Written submissions of the
Department

In its written submissions
the Department argued that the detention of the complainants was not a
breach of human rights. Essentially, the Department stated that the detention
is authorised by domestic legislation (being section 253 of the Migration
Act) and is not arbitrary under article 9 of the ICCPR . It contended
both that the period of detention is not unpredictable, unjust or disproportionate
and that the location of the detainees in the Parramatta Correctional
Complex is not unjust or unreasonable.

More specifically,
in relation to the period of detention, the Department stated that it
is fully aware of the prohibition in article 9 of the ICCPR and does not
regard the detention of the complainants as "arbitrary". The Department
submitted that to be "arbitrary", detention must have elements of "inappropriateness,
injustice, lack of predictability and unproportionality" although the
law is not settled as to what degree of unpredictability and unproportionality
is required. However, the authorities do suggest that to be so manifestly
unpredictable as to be arbitrary, the period of detention must be undetermined.
The Department asserted that an indefinite period of detention means something
more than the exact period of detention being not prescribed by law. Detention
will be indefinite where there is no legal basis for the detention or
where the power to release is not triggered by a specific decision or
event.

The Department argued
that there is a clear legal basis in section 253 of the Migration Act
to detain deportees pending removal and that this was confirmed by the
Full Federal Court in Vo v Minister for Immigration and Multicultural
Affairs
[2000] FCA 803 where the Court said that "we cannot accept
that the length of detention can of itself destroy the legal validity
of detention". The power to release detainees can be exercised by the
Minister or the Secretary of the Department (section 253(9)) and will,
in the case of the complainants, be triggered by a specific event, namely
the conclusion of the memorandum of understanding and the acceptance by
the Vietnamese Government of the return of the complainants. This event
is considered to be "probable". The mere "possibility" of non acceptance
is not the appropriate or meaningful benchmark for decision making under
section 253(9).

In relation to negotiations
with Vietnam, the Department said that the Australian Government presented
a draft memorandum of understanding to the Vietnamese Government in March
2000 and has continued to press for its resolution, as well as making
further representations in respect of individual cases. It stated that
the Government of Vietnam has never explicitly stated that it would not
accept the return of the complainants and has signalled its interest in
reaching a framework agreement for the return of Vietnamese nationals.
Vietnam has made such arrangements with other countries and Australia's
efforts are based on this precedent as well as on Vietnam's signalled
interest in reaching agreement on the return of deportees. The Department
submitted that it is reasonable to rely on these matters.

Further, the Department
stated that it has in many cases lobbied governments to provide travel
documents and, even in cases where there is initial reluctance, the approach
is successful in the majority of cases. The Department and the Department
of Foreign Affairs and Trade continue to negotiate with the Government
of Vietnam for the return of the complainants in "as short a time frame
as possible" and the situation of the complainants is closely monitored
by the Department.

In relation to the
location of the detention, the Department argued that section 5 of the
Migration Act allows a state correctional facility to be a place of immigration
detention. People more appropriately detained in such facilities are those
who are of behavioural concern or who have committed serious criminal
acts (Migration Series Instruction 244). The condition of detainees is
subject to regular monitoring and formal monthly reviews are conducted
by Departmental officers. Given there is a legislative basis for detention
in state correctional facilities and given the monitoring received, the
Department submitted that the location of the detention in the Parramatta
Correctional Complex is not unjust or unreasonable.

3. NOTICE
OF FINDINGS AND RECOMMENDATIONS OF THE COMMISSION

On 24 November 2000
I issued to the Department a notice of my findings, my reasons for these
findings and my recommendations in relation to this inquiry. I found that
there had been a breach of human rights under the HREOC Act and I recommended
that the complainants be released from detention pending their deportation.
I provided a copy of this notice to the complainants.

My findings, reasons
for findings and recommendations of which notice was given on 24 November
2000 are set out in sections 4 and 5 below.

4.
FINDINGS AND REASONS FOR FINDINGS

In deciding whether
any act or practice is inconsistent with or contrary to human rights under
the HREOC Act I must consider:

  • whether there is an act or practice under the HREOC Act; and if
    so
  • whether the act or practice is inconsistent with or contrary to
    any human right.

4.1
Is there an act or practice?

Section 3 of the
HREOC Act defines an "act" or "practice" as including an act or practice
done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Department is
a Commonwealth government department, under the Minister for Immigration
and Multicultural Affairs. The acts or practices complained of relate
to continued detention of the complainants following the conclusion of
their sentences. Although the detention is pursuant to the Migration Act,
the Minister or the Secretary of the Department has a discretion under
subsections 253(8) and (9) of the Migration Act to release the complainants.

As there is a discretion
in section 253, the detention is not directly compelled by the legislation
and I am satisfied that the matters complained of are acts and practices
of the Commonwealth for the purposes of the HREOC Act.

4.2
Is the act or practice inconsistent with or contrary to any human right?

Section 3 of the
HREOC Act defines "human rights" as including the rights and freedoms
recognised in the ICCPR, which is Schedule 2 to the HREOC Act. Article
9(1) of the ICCPR provides:

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.

In my preliminary
report, I made a number of findings which do not appear to be in dispute.
I therefore make the following findings:

  • The complainants are all Vietnamese nationals who have been living
    in Australia as permanent residents for a number of years. The complainants
    were all convicted of criminal offences that incurred prison sentences.
    The complainants have completed these sentences.

  • The complainants have had deportation orders served against them
    pursuant to section 200 of the Migration Act. The complainants can
    all legally be deported to Vietnam, which is their country of origin.

  • The complainants are currently incarcerated in the Parramatta Correctional
    Complex awaiting deportation to Vietnam pursuant to a discretionary
    power of the Minister under section 253 of the Migration Act. The
    complainants have been detained in the Parramatta Correctional Complex
    as immigration detainees for periods ranging from two years and nine
    months to 13 months.

  • The Parramatta Correctional Complex is a maximum security prison
    controlled by the NSW Department of Correctional Services. The Commonwealth
    has an agreement with the NSW Government for persons who are to be
    deported to be incarcerated in state prisons.

  • The complainants cannot be deported under the deportation orders
    because the Government of Vietnam has not provided the relevant papers
    to allow the complainants to be deported to Vietnam.

In relation to the
negotiations with the Vietnamese Government concerning travel documents
for the complainants, I make the following findings:

  • Negotiations are underway with the Government of Vietnam in relation
    to securing these travel documents as well as in relation to the formalisation
    of a framework agreement for the return of deportees generally.

  • A memorandum of understanding was signed by Australia and forwarded
    to Vietnam in March 2000.

  • The Vietnamese Government has not signed the memorandum of understanding.
  • Travel documents have not been received for any of the complainants
    and it is not known when they will be forthcoming.

In considering whether
the detention of the complainants in these circumstances is arbitrary
under article 9(1), I have been guided by both international and domestic
jurisprudence.

International jurisprudence
and commentary

The right in article
9(1) extends to all deprivations of liberty, whether in criminal cases
or in matters concerning immigration.[1] The Human
Rights Committee has on a number of occasions found detention following
the expiration of a criminal sentence to amount to a breach of article
9(1). [2]

Further, the reference
to arbitrariness in article 9(1) imposes a separate and distinct
limitation on detention to the requirement that the detention be lawful.
When the article was drafted, it was clear that the meaning of "arbitrary"
contained elements of injustice, unpredictability, unreasonableness, capriciousness
and unproportionality, as well as the common law principle of due process
of law. [3] The Human Rights Committee in Van
Alphen v The Netherlands
, 305/1988, adopted 23/7/1990, confirmed that
there are various factors which may render an otherwise lawful detention
arbitrary. It said that:

arbitrariness is not to be equated with "against the law"
but must be interpreted more broadly to include elements of inappropriateness,
injustice and lack of predictability. This means that remand in custody
pursuant to lawful arrest must not only be lawful but reasonable in
all the circumstances. Further, remand in custody must be necessary
in all the circumstances, for example, to prevent flight, interference
with evidence or the recurrence of crime.

Nowak summarises
the jurisprudence in this area to the effect that article 9(1) requires
that deprivation of liberty provided for by law "must not be manifestly
unproportional, unjust or unpredictable". [4] Further,
in A v Australia the Human Rights Committee stated that detention
was arbitrary if it was "not necessary in all the circumstances of the
case" and if it was not a proportionate means to achieving a legitimate
aim. [5]

Domestic case law

In Perez v Minister
for Immigration and Multicultural Affairs
[1999] FCA 1342, Madgwick
J considered the situation in which a person is detained where there are
no prospects of deportation occurring. His Honour said that delay in the
execution of a deportation order does not invalidate the order itself
but that the "prospect of a long delay" is not irrelevant to its validity.
His Honour said that:

. the principle purpose of and justification for the making
of a deportation order is to effect the proposed deportation of the
person. If it were plain that there was no prospect of effecting the
deportation within a reasonable period, there might be no justification
for the making of the order and the conclusion might be invited that
the power to make the order was being exercised for some extraneous
and therefore legally improper purpose. Further, upon its later becoming
apparent, after the regular making of an order, that events revealed
a practical impossibility in actually effecting the deportation, questions
of the Minister then having a legal duty to revoke the order might
arise.. Nevertheless, delay on its own may be a less alarming matter
than a likelihood that a practical consequence of the making of a
deportation order will be indeterminate detention, in the sense
of detention for a long period or an unknown period that is not acceptably
short
(emphasis added).

His Honour continued:

Administrative detention for a long or indefinite period,
except in cases of utter urgency or necessity, is abhorrent to our
legal and political traditions and to international conceptions of
human rights for which Australia has signified our respect by entering
into treaties.

He further commented
that "some delay in effectuating a deportation order may be unavoidable.
But indeterminate administrative detention is a very different thing".
In considering whether there was a clear legislative mandate for administrative
detention of an unacceptable duration, Madgwick J construed the Migration
Act in the light of Australia's international obligations, including article
9 of the ICCPR.

Madgwick J gives
some guidance as to what will be a "reasonable prospect of the deportation
order being effected within a reasonable time". This must be considered
in all the circumstances and a "commonsense appreciation of practicalities"
should be brought to bear. One relevant matter will be "justified expectation,
based on past dealings with a proposed deportee's country of nationality,
about reasonably prompt effectuation of the deportation". Subsection (8)
of section 253 requires a "real chance of a reasonably imminent deportation,
as distinct from a merely theoretical or insubstantial possibility of
a deportation or a deportation that can only occur at some time far into
the future". Further, subsection (9) is an "active source of the Minister's
power to prevent injustice". The likelihood of indeterminate detention
is an important matter affecting the merits of a decision to make a deportation
order.

The Federal Court
has considered this issue in a series of cases concerning Mr Vo, one of
the present complainants. In Vo v Minister for Immigration and Multicultural
Affairs
[1998] FCA 1632, Lindgren J refused an application for release
from detention. His Honour said that Mr Vo would be unlikely to present
himself for deportation if released but "there may come a time when, and
there may be circumstances in which, it would not be a sustainable exercise
of discretion to keep Mr Vo in detention any longer".

In Vo v Minister
for Immigration and Multicultural Affairs
[1999] FCA 1845 Tamberlin
J considered a further challenge to decisions to continue to detain Mr
Vo under section 253 of the Migration Act. His Honour found that the decision
maker had taken into account the length of the detention (then 13 months)
and that the decision not to release Mr Vo was not "unreasonable" in the
Wednesbury sense. His Honour thought the reasonableness of the decision
was supported by the evidence presented to him at the hearing about the
ongoing negotiations with the Vietnamese Government which "makes it clear
that the negotiations for issue of the travel documents to enable the
deportation to be implemented will probably be finalised within the next
few months". His Honour thought that "the likely outcome will be the deportation
of the applicant within the next few months as a result of the strenuous
efforts and determined policy of the Australian Government to have the
applicant deported" and that the evidence indicated that "a decision is
expected to be taken by the Vietnamese authorities by mid-February 2000".

On appeal to the
Full Federal Court in Vo v Minister for Immigration and Multicultural
Affairs
[2000] FCA 803, the Court considered the comments of Madgwick
J in Perez and agreed that the matters raised by his Honour did go to
the merits of a decision under section 253(9). However, the Court said
that the length of detention cannot in itself destroy the legal validity
of the detention. In considering an argument that the Minister erred in
law in failing to take into account the unlikelihood of deportation within
a reasonable time when considering whether to order release, the Court
said that the decision under review was made on 21 July 1999 and its legality
must be tested at that point in time.

Discussion and reasons

Both the international
jurisprudence and decisions of domestic courts are relevant in considering
whether detention in the complainants' circumstances is in breach of article
9(1) of the ICCPR. I have come to the conclusion that it is. I say this
for the following reasons.

I accept that the
detention of the complainants is lawful under section 253 of the Migration
Act. I also acknowledge that the Department has regularly assessed whether
the complainants should continue to be held in immigration detention and
placed in the Parramatta Correctional Complex in particular. The Department's
primary consideration has been the type of crimes committed by the complainants
and the possibility of their presenting themselves for deportation if
released, as well as the Department's view on their suitability for detention
in Immigration Detention Centres.

The Full Federal
Court has held that the length of detention itself cannot affect the legal
validity of detention. However, the question before the Commission is
not whether the detention is legal pursuant to section 253 of the Migration
Act, but whether it is in breach of article 9. Detention may be lawful
but still be arbitrary.

In my view, the detention
of the complainants in the circumstances in which they are held is arbitrary
within the meaning of article 9(1). This is because of the indefinite,
indeterminate and unpredictable period for which the complainants have
been and will continue to be subject to detention.

I accept his Honour
Madgwick J's description of indeterminate detention as "detention for
a long period or an unknown period that is not acceptably short". It is
quite plain that each of the complainants has been detained for what can
reasonably be described as either "a long period" or "an unknown period
that is not acceptably short".

The complainants
have now been held in prison for periods ranging from 13 months to two
years and nine months since the completion of their criminal sentences.
Although the Department states that it is "probable" that a memorandum
of understanding will be signed and that Vietnam will accept the complainants,
there is no clear indication of when this will occur or whether it will
occur soon.

The Department, through
its officer, gave sworn evidence to the Federal Court in December 1999
that it expected that travel documents would be issued to Mr Vo within
the month and that by February 2000 Mr Vo should have left Australia.
This has clearly not occurred. The respondent has now submitted to me
that it is "probable" that the complainants would be deported soon and
that negotiations continue to obtain authority to return the complainants
to Vietnam "in as short a time frame as possible". However, it is unable
to advise when this will occur.

In the circumstances,
the length of the detention of the complainants is plainly unpredictable,
indefinite and indeterminate. The fact that detention will end on the
occurrence of a known event (the issue of the travel documents) does not
render it predictable, finite or determinate, if it is not known when
this event will occur.

I appreciate that
the Department is in a difficult position and I understand that there
are a number of other people in custody who are in the position of the
complainants. I acknowledge that substantial efforts have been made and
continue to be made to negotiate an agreement with the Vietnamese Government
for the return of its nationals. However, the practical result for the
complainants is that they remain in immigration detention, where they
have each been for some considerable period of time, without any defined
or predictable prospect of release. In my view, this detention is arbitrary
and in breach of article 9(1).

5.
RECOMMENDATIONS

Having found the
acts and practices alleged constitute a breach of human rights I am required
to consider what recommendations I should make.

The complainants
have not requested compensation in relation to this matter and I do not
consider that any recommendation in respect of compensation is appropriate
in this case.

As I have found that
the detention of the complainants is arbitrary, I recommend their immediate
release from detention pending deportation. I note that section 253(9)
of the Migration Act allows the Secretary or the Minister to release the
complainants subject to specified conditions. It is of course open to
the respondent to impose reporting or monitoring conditions to ensure
that the complainants are available to be deported when deportation can
be effected.

6.
THE DEPARTMENT'S REPLY TO THE FINDINGS AND RECOMMENDATIONS

On 29 December 2000
the Department responded to the Commission's notice of 24 November 2000.
Pursuant to s.29(2)(e) of the HREOC Act, I include in this report the
relevant sections of this correspondence from the Acting Secretary of
the Department:

I am responding to the letter to the Secretary, Mr Bill Farmer,
by Professor Alice Tay, President, HREOC, of 24 November 2000 in
which she notified that HREOC would be reporting to the Attorney-General
in accordance with section 29 of the HREOC Act 1986 relating to
an adverse finding against this Department and requested advice
as to what actions this Department will take in response to her
recommendations.

In Mr Farmer's letter to your predecessor Mr Chris Sidoti, dated
15 June 2000, he set out in some detail his reasons for taking the
view that the detention of the complainants is not arbitrary. I
maintain that view.

At the same time, I have directed relevant officers to conduct
a comprehensive review of the circumstances of each complainant
in order to evaluate whether continued detention remains appropriate.
While I intend to have these matters reviewed at a senior level,
I cannot give you any assurances that this process will necessarily
lead to any releases under section 253(9) of the Migration Act 1958.

I should also advise that on 4 December 2000 the Vietnamese Government
passed to us a number of draft amendments to the Memorandum of Understanding
currently under negotiation between Australia and Vietnam. While
there are a number of proposals in the Vietnamese draft which we
will need to refine and negotiate further, the fact of the proposal
being made represents a very significant step towards finalising
agreed return arrangements with Vietnam. This development is a consequence
of our ongoing efforts to engage the Vietnamese Government and you
may be assured that we are committed to the earliest possible resolution
of these return arrangements.

Thank you for the opportunity to respond to your findings.

Endnotes

1.
United Nations Human Rights Committee, General Comment No. 8, (1982),
paragraph 1. See also discussion in Human Rights and Equal Opportunity
Commission, Those who've come across the seas; Detention of unauthorised
arrivals
, May 1998 at p.46.

2.See,
for example, Communication No. 8/1977, adopted 3 April 1980; Communication
No. 277/1988, adopted 26 March 1992; Communication No. 25/1978, adopted
26 July 1982.

3.
M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary,
1993 at p.172.

4.
Nowak, at p.173.

5.
Communication No. 560/1993, adopted 30 April 1997.

APPENDIX
A: FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION
TO HUMAN RIGHTS

The Commission has
specific legislative functions and responsibilities for the protection
and promotion of human rights under the HREOC Act. Part II Divisions 2
and 3 of the HREOC Act confer functions on the Commission in relation
to human rights. In particular, s.11(1)(f) of the HREOC Act empowers the
Commission to inquire into acts or practices of the Commonwealth that
may be inconsistent with or contrary to the rights set out in the human
rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f)
of the HREOC Act states:

(1) The functions of the Commission are:

(f) to inquire into any act or practice that may be inconsistent
with or contrary to any human right, and:

(i) where the Commission considers it appropriate
to do so to endeavour, by conciliation, to effect a settlement
of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or
practice is inconsistent with or contrary to any human right,
and the Commission has not considered it appropriate to endeavour
to effect a settlement of the matters that gave rise to the
inquiry or has endeavoured without success to effect such a
settlement to report to the Minister in relation to the inquiry.

Section 3 of the
HREOC Act defines an "act" or "practice" as including an act or practice
done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs
the functions referred to in s.11(1)(f) of the HREOC Act upon the Attorney
General's request, when a complaint is made in writing or when the Commission
regards it desirable to do so (s.20(1) of the HREOC Act).

In addition, the
Commission is obliged to perform all of its functions in accordance with
the principles set out in s.l0A of the HREOC Act, namely with regard for
the indivisibility and universality of human rights and the principle
that every person is free and equal in dignity and rights.

The Commission attempts
to resolve complaints under the provisions of the HREOC Act through the
process of conciliation. Where conciliation is not successful or not appropriate
and the Commission is of the opinion that an act or practice constitutes
a breach of human rights, the Commission shall not furnish a report to
the Attorney General until it has given the respondent to the complaint
an opportunity to make written or oral submissions in relation to the
complaint (s.27 of the HREOC Act).

If, after the inquiry,
the Commission finds a breach of human rights, it must serve a notice
on the person doing the act or engaging in the practice setting out the
findings and the reasons for those findings (s.29(2)(a) of the HREOC Act).
The Commission may make recommendations for preventing a repetition of
the act or a continuation of the practice, the payment of compensation
or any other action to remedy or reduce the loss or damage suffered as
a result of the breach of a person's human rights (s. 29(2)(b) and (c)
of the HREOC Act).

If the Commission
finds a breach of human rights and it furnishes a report on the matter
to the Attorney General, the Commission is to include in the report particulars
of any recommendations made in the notice (s.29(2)(d)) of the HREOC Act)
and details of any actions that the person is taking as a result of the
findings and recommendations of the Commission (s.29(2)(e) of the HREOC
Act). The Attorney-General must table the report in both Houses of Federal
Parliament within 15 sitting days in accordance with s.46 of the HREOC
Act.

It should be noted
that the Commission has a discretion to cease inquiry into an act or practice
in certain circumstances (s.20(2) of the HREOC Act), including where the
subject matter of the complaint has already been adequately dealt with
by the Commission (s.20(2)(c)(v) of the HREOC Act).

Please note:
If you require information included in this document which has been provided
in Tables in an alternative format, please contact the Human Rights and
Equal Opportunity Commission at: paffairs@humanrights.gov.au

Last
updated 2 December 2001.