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HREOC - Annual Report 2001 - 2002:Chapter 3: Legal Services

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

Chapter 3: Legal Services

The primary responsibilities
of the Legal Section for the 2001-02 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).
  • Schedule and
    facilitate the hearing of outstanding matters under the Commission's
    former inquiry function.
  • 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.
  • 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.
  • Represent
    the Commission in international project work.

Hearings by the Commission

The Commission's
jurisdiction to hear and determine complaints of unlawful discrimination
ceased on 13 April 2000 with the commencement of the Human Rights
Legislation Amendment Act (No.1) 1999
(Cth) and was transferred
to the Federal Court and Federal Magistrates Service. The Commission
retained the jurisdiction to complete those public inquiries that
had commenced prior to 13 April 2000.

During 2001-02,
the last of those public inquiries, being three in total, were finalised.
No determinations were issued in relation to these matters as one
matter settled and the other two matters were terminated by the President
as a result of the Federal Court decision in Kowalski v Domestic
Violence Crisis Service
[2001] FCA 1082 (10 August 2001).

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 her 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 her delegate
to issue Notices of findings, consider submissions and prepare reports
to the Attorney-General.

Between 1 July
2001 and 30 June 2002, the following reports were tabled in Parliament
by the Minister pursuant to this function:

HREOC Report No. 14

Report of
an inquiry into a complaint by Mr Andrew Hamilton of age discrimination
in the Australian Defence Force (January 2002)

This Report is
of an inquiry conducted prior to the commencement of the Human
Rights Legislation Amendment Act 1999
(No.1) (Cth) by the former
Human Rights Commissioner. The inquiry dealt with a complaint of discrimination
in employment concerning discrimination on the ground of age against
the Commonwealth of Australia (Australian Defence Force). The Human
Rights Commissioner found that the Australian Defence Force had discriminated
against Mr Hamilton on the basis of his age.

In particular,
the Human Rights Commissioner found that:

  • in placing
    the complainant in Promotion Band D at the June 1995 Promotion Board
    the respondent engaged in an act of age discrimination
  • the decision
    to place the complainant in Promotion Band D was based on a distinction,
    exclusion or preference on the ground of age which had the effect
    of nullifying or impairing the complainant's equality of opportunity
    or treatment in employment or occupation
  • the distinction,
    exclusion or preference was not based on the inherent requirements
    of the job.

HREOC Report No. 15

Report of
an inquiry into a complaint by Ms Elizabeth Ching concerning the cancellation
of her visa on arrival in Australia and subsequent mandatory detention
(February 2002)

This Report is
of an inquiry into a complaint by Ms Ching that her human rights were
breached when she was questioned by Department of Immigration and
Multicultural Affairs (DIMA) officials on her arrival at Brisbane
airport, and her subsequent custody at the Brisbane Women's Correctional
Centre. The President found that some aspects of Ms Ching's treatment
were inconsistent with or contrary to her human rights.

In particular,
the President found that:

  • the act by
    an officer of DIMA of requiring Ms Ching to provide a response to
    the notification of the likely cancellation of her visa within a
    period of ten minutes was in breach of the requirement in article
    13 of the International Covenant on Civil and Political Rights
    ("ICCPR") which provides that an applicant be allowed
    to submit the reasons against expulsion.
  • the act by
    an officer of DIMA not to advise Ms Ching that she was able to seek
    legal advice or assistance had the effect that Ms Ching was not
    able to exercise her rights pursuant to article 13 of the ICCPR
    to have her case reviewed before a competent authority and to be
    represented for the purpose of having her case reviewed before a
    competent authority and therefore amounts to an act which is inconsistent
    with or contrary to her human rights.

HREOC Report No. 16

Report of
an inquiry into a complaint by Mr Hocine Kaci of acts or practices
inconsistent with or contrary to human rights arising from immigration
detention (May 2002)

This Report concerns
an inquiry into a complaint made by an asylum seeker, (Mr Kaci), who
had been transferred from an immigration detention centre to a remand
centre as a result of alleged unacceptable behaviour. Mr Kaci alleged
that the conditions in which he was detained were contrary to the
ICCPR. The President found that the conditions of Mr Kaci's detention
were in breach of article 10(2) of the ICCPR.

In particular,
the President found that:

  • asylum seekers
    in immigration detention, as unconvicted persons, should be treated
    in a different manner to convicted prisoners. Article 10(2) of the
    ICCPR obliges Australia to ensure that unconvicted persons are subject
    to separate treatment appropriate to their status
  • unconvicted
    persons in detention are entitled to a "special regime"
    of treatment as outlined in Part II, Section C of the UN Standard
    Minimum Rules for the Treatment of Prisoners.

HREOC Report No. 17

Report of
an inquiry into a complaint by the Asylum Seekers Centre concerning
changes to the Asylum Seekers Assistance Scheme (May 2002)

This Report concerns
an inquiry into a complaint by the Asylum Seekers Centre alleging
that changes to the Asylum Seekers Assistance Scheme made by the Department
of Immigration, Multicultural and Indigenous Affairs had breached
the human rights of people seeking asylum in Australia. The first
changes complained of produced the result that asylum seekers are
no longer eligible for the Scheme if their application is being reviewed
by the Refugee Review Tribunal. New criteria governing exemptions
from the Scheme's waiting period were also introduced. Further revision
of the criteria for exemption from the waiting period was made a short
time after the initial changes. The Human Rights Commissioner found
that the changes made to the Asylum Seekers Assistance Scheme were
in breach of articles 3 and 24(2)(d) of the Convention on the Rights
Of the Child
("CROC") and article 26 of the ICCPR.

In particular,
the Human Rights Commissioner found that:

  • the best interests
    of the child were not a primary consideration in making the changes
    to the scheme, and thus article 3 of CROC had been breached
  • at a minimum,
    Australia is required to provide all pregnant women with ongoing
    assistance and information in relation to their pregnancy. The changes
    to the scheme resulted in a number of pregnant asylum seekers being
    denied "appropriate prenatal care", and the changes were
    in breach of article 24(2)(d) of the ICCPR
  • the changes
    to the scheme were discriminatory and in breach of article 26 of
    the ICCPR.

HREOC Report No. 18

Report of
an inquiry into a complaint by Mr Duc Anh Ha of acts or practices
inconsistent with or contrary to human rights arising from immigration
detention (May 2002)

This Report concerns
an inquiry into a complaint made by Mr Ha, an immigration detainee,
regarding his transfer to a maximum security prison, and his subsequent
detention in that prison. The President found that his transfer to
a maximum security prison, and his subsequent detention in that prison,
was contrary to articles 9(1), 10(1) and 10(2)(a) of the ICCPR.

In particular,
the President found that:

  • the lack
    of access to recreational facilities, locking of Mr Ha in his cell
    for 22 hours a day, denial of an opportunity to work, and failure
    to provide time to exercise all amounted to a breach of article
    10(1) of the ICCPR
  • the transfer
    of Mr Ha to a maximum security prison, and failure to accord him
    treatment appropriate to his status as an unconvicted person constituted
    a breach of article 10(2)(a) of the ICCPR
  • the failure
    to consider whether or not Mr Ha could be segregated from convicted
    prisoners was in breach of article 10(2)(a) of the ICCPR
  • Mr Ha's detention
    was arbitrary, unjust and inappropriate in the circumstances, and
    thus in breach of article 9 of the ICCPR.

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.

During 2001-02,
the Commission was granted leave to intervene in nine matters. Summaries
of seven of those matters follow:

NAAV &
NABE v Minister for Immigration and Multicultural Affairs

The Commission
was granted leave to intervene in this matter which was heard by a
five member bench of the Federal Court in Melbourne on 3-5 June 2002.

The central issue
was the construction of the "privative clause" inserted
into section 474 of the Migration Act 1958 (Cth) which commenced
operation on 2 October 2001. This provides that a "privative
clause" decision (including, relevantly, a decision of the Refugee
Review Tribunal ("RRT")):

  • is final
    and conclusive
  • must not be
    challenged, appealed against, reviewed, quashed or called in question
    in any court
  • is not subject
    to prohibition, mandamus, injunction, declaration or certiorari
    in any court on any account.

In his case,
the appellant claimed that he had been denied procedural fairness
by the RRT. The RRT was said to have misunderstood the appellant's
claims of persecution and therefore failed to address them. In both
cases, the appellants submitted that the errors went to the jurisdiction
of the RRT and that the privative clause in section 474 of the Migration
Act
did not operate to prevent an appeal on the basis of the types
of jurisdictional error of which they complained.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/submission_naav.html

At the time of
this report the Court has reserved its decision.

Attorney-General
for the Commonwealth v Kevin and Jennifer

On 8 February
2002, the Full Court of the Family Court granted leave to the Commission
to intervene in the appeal by the Attorney-General against the judgment
of Justice Chisholm on 12 October 2001. In that judgment, his Honour
declared valid the marriage between Kevin (a post-operative female
to male transsexual person) and Jennifer. Both parties had accepted
that a valid marriage for the purposes of the Marriage Act 1961
(Cth) must be between a "man" and a "woman".
The issue in dispute was whether Kevin is a "man" for the
purposes of that Act.

The Commission
sought to intervene concerning the relevance of principles of international
human rights law in considering the interpretation of the word "man"
in the Marriage Act. Leave to intervene was sought for the
following principles: the guarantees of equality before the law and
non-discrimination in articles 2(1) and 26 of the ICCPR; the right
to marry and found a family in article 23 of the ICCPR; and; the right
not to be subject to arbitrary or unlawful interference with a person's
privacy and family in article 17(1) of the ICCPR. The Commission submitted
that these principles supported the conclusion reached by the Justice
Chisholm, that Kevin is a "man" for the purposes of the
law of marriage.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/submission_kevin_jennifer.html

At the time
of this report the Court's decision remains reserved.

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

In May 2002,
the High Court heard an appeal in the Yorta Yorta native title claim
relating to land in south western NSW and north western Victoria.
The initial claim was dismissed in December 1998, with the trial judge
ruling that the ancestors of the Yorta Yorta people had lost their
culture to such an extent that native title could no longer be recognised.
An appeal from this decision was dismissed by the Full Federal Court
in February 2001. The Yorta Yorta people appealed the Full Federal
Court's decision to the High Court.

The Commission
was granted leave to intervene in the proceedings before the High
Court.

The Commission
submitted that wherever the language of the statute permits a construction
which is consistent with the terms of a relevant international instrument
and the obligations which it imposes on Australia, then the Court
should adopt that construction. The strong presumption is that the
Native Title Act 1993 (Cth) should be construed in conformity with
the provisions of relevant human rights treaties and the interpretative
jurisprudence of human rights treaty bodies.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/yorta_yorta.html

At the time of
this report, the Court's decision remains reserved.

Peter Martizi
v Minister for Immigration, Multicultural and Indigenous Affairs
Simon
Odhiambo v Minister for Immigration, Multicultural and Indigenous
Affairs

The Commission
was granted leave to intervene in these proceedings, which were heard
together before the Full Federal Court on 24 April 2002. The Commission
was represented by Senior Counsel before the Court and made written
and oral submissions. The Legal Section of the Commission acted as
instructing solicitors.

These proceedings
involved a review of the decisions of the RRT in relation to Mr Odhiambo
and Mr Martizi ("the appellants"). At the time of their
respective RRT hearings, both of the appellants were "unaccompanied
minors", that is, they were under 18 years of age and did not
have any person in Australia to care for them. Both of the appellants
had been detained in Port Hedland Immigration Reception and Processing
Centre since their arrival in Australia.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/submission_martizi.html

On 20 June 2002,
the Full Court handed down its decision. The appeal was dismissed
as, amongst other matters, the Court found the absence of a guardian
for the appellants did not cause them any disadvantage in their RRT
hearings.

The Court, however,
noted that there may be a conflict between the role of the Minister
as guardian of unaccompanied minors and his role in administering
the Migration Act. This is because the person administering
the Migration Act, the Minister, has an interest in resisting
challenges to decisions of his delegates and decisions of the RRT
that uphold delegates' decisions. That interest is directly opposed
to the interests of an asylum seeker in setting aside a decision unfavourable
to him or her.

The appellants
are currently considering whether to make an application to the High
Court for special leave to appeal against this decision.

Victorian
Council for Civil Liberties v Minister for Immigration and Multicultural
Affairs and Ors
Eric Vadarlis v Minister for Immigration and Multicultural Affairs
and Ors ("The Tampa Case")

The Commission
was granted leave to intervene in these proceedings before the Federal
Court, Full Federal Court and High Court (27 November 2001).

The primary issue
in these proceedings was the lawfulness of the actions of the Commonwealth
Government concerning the 433 asylum seekers who were rescued by the
MV Tampa from their sinking boat on or about 26 August 2001. The Commonwealth
Government sought to prevent the asylum seekers from entering the
migration zone in Australia as they did not have valid visas to do
so. To this end, the Government:

  • did not permit
    the MV Tampa to enter the port on Christmas Island
  • did not permit
    the asylum seekers to leave the ship except to leave Australian
    territorial waters
  • through SAS
    officers, controlled the movements of the asylum seekers on the
    ship
  • did not permit
    the asylum seekers to communicate with persons off the ship or persons
    off the ship to communicate with them.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/tampa.html
and www.humanrights.gov.au/legal/guidelines/tampa2.html

On 11 September
2001, Justice North in the Federal Court found that the Commonwealth
had detained without lawful authority the asylum seekers rescued by
MV Tampa. He ordered the Commonwealth to release those asylum
seekers and bring them to a place on the mainland of Australia.

The Commonwealth
appealed against this decision to the Full Court of the Federal Court.
On 17 September 2001, by a majority comprising Justices Beaumont and
French, that Court determined that the appeals should be allowed and
set aside the orders made by Justice North. The majority judges concluded
that the Commonwealth was acting within its executive power under
section 61 of the Constitution in the steps it took to prevent
the landing of the rescuees. The majority has also concluded that
the rescuees were not detained by the Commonwealth nor did they have
their freedom restricted by anything that the Commonwealth did.

Chief Justice
Black dissented. He took the view that whilst the power to expel people
entering Australia illegally is undoubted, it is a power that derives
only from laws made by the Parliament and not from powers otherwise
exercisable by the Executive Government. He took the view that since
the powers provided in the Migration Act were not relied upon,
the Commonwealth Government had no power to detain those rescued from
the Tampa. He considered that on the facts of the case there was a
detention by the Commonwealth and that since it was not justified
by the powers conferred by the Parliament under the Migration Act
it was not justified by law. He was therefore of the opinion that
the appeal should be dismissed.

On 27 November
2001, Mr Vadarlis made an application to the High Court seeking special
leave to appeal against the majority decision of the Full Federal
Court. He also sought to challenge the validity of parts of the Border
Protection (Validation and Enforcement Powers) Act 2001
which
was passed after the Full Court decision was delivered (the relevant
parts of this Act purported to render all Commonwealth action relating
to the Tampa lawful).

The High Court
refused Mr Vadarlis' application. While the High Court found that
the issues in this case raised important constitutional questions,
there had been a change in the factual circumstances since the Full
Court hearing (as the asylum seekers were no longer on a ship controlled
by the Commonwealth but in Nauru). The Court indicated that this rendered
the arguments on appeal hypothetical and made it difficult to determine
what orders the Court should make if the applicants were successful.

Ming Dung
Luu v Minister for Immigration and Multicultural Affairs

As reported in
the 2000-01 Annual Report, in June 2001 the Commission intervened
in proceedings in the Federal Court involving a review of a decision
of the Minister for Immigration and Multicultural Affairs.

That decision
related to Mr Ming Dung Luu, who was the subject of a deportation
order made by the Minister following his conviction on a serious assault
charge. Mr Luu was sentenced by the Victorian County Court to a maximum
of three years and six months imprisonment in relation to that charge.
After being paroled (on 18 June 1997), Mr Luu was placed in immigration
detention pending his deportation. The Department of Immigration and
Multicultural Affairs determined that Mr Luu should be detained in
a maximum security prison rather than in an immigration detention
centre.

Mr Luu sought
to have the Minister exercise his discretion under section 253(9)
of the Migration Act to release him or, alternatively, revoke the
original deportation order. After Mr Luu commenced Court proceedings
in the Federal Court, the Minister determined not to exercise his
power to release Mr Luu or revoke the deportation order. Mr Luu sought
judicial review, under the Administrative Decisions (Judicial Review)
Act 1977
(Cth), of that decision (and certain other matters).

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/submissions_luu.html

Since the 2000-01
Annual Report, Justice Marshall (the judge at first instance) handed
down his decision in which he dismissed the application of Mr Luu.
In relation to the issues raised by the Commission regarding arbitrary
detention, his Honour found on the facts for the Minister on the basis
of the Minister's understanding of the state of negotiations with
Vietnam in relation to a Memorandum of Understanding. The purpose
of the Memorandum was said to be to facilitate the deportation to
Vietnam of people in Mr Luu's position. His Honour found that the
Minister's understanding of those negotiations meant that he was able
to give a: "reasonably specific approximation of when Mr Luu
was likely to be deported".

Mr Luu has since
appealed to the Full Federal Court. The Commission made further oral
and written submissions (available at www.humanrights.gov.au/legal/guidelines/submissions_luu.html)
and the decision is reserved as at the date of this report.

Re McBain;
Ex Parte Australian Catholic Bishops' Conference and Another, Human
Rights and Equal Opportunity Commission and others intervening

In this case,
the High Court considered applications (brought in the court's original
jurisdiction) to quash a decision of Justice Sundberg, a Judge of
the Federal Court of Australia.

In the proceedings
before Justice Sundberg, Dr McBain (a gynaecologist) sought a declaration
that certain provisions of the Infertility Treatment Act 1995
(Vic) were inoperative because they were inconsistent with the Sex
Discrimination Act 1984
(Cth).

The applicants
(the Australian Catholic Bishops Conference and the Australian Episcopal
Conference of the Roman Catholic Church) were not parties to the action
in the Federal Court, but had been granted leave to be heard as amici
curiae
. The parties to the Federal Court action did not appeal
Justice Sundberg's decision.

The Commission,
along with the Women's Electoral Lobby and the Australian Family Association,
was granted leave to intervene in the High Court proceedings. The
Commonwealth also intervened.

The Commission's
submissions in this case can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/hcaivf1.html

The High Court
unanimously dismissed the applications. The majority (Chief Justice
Gleeson and Justices Gaudron, Gummow and Hayne) accepted the Commission's
submissions on the first issue, holding that the High Court did not
have jurisdiction to consider the applications because they did not
give rise to a matter within the meaning of Chapter III of the Constitution.
The other members of the Court agreed that the application should
be dismissed, but on different grounds.

None of the members
of the Court gave any detailed consideration to issues raised in the
proceedings regarding the validity and interpretation of the Sex Discrimination
Act.

Amicus curiae

Section 46PV
of the Human Rights and Equal Opportunity Commission Act 1986
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.

There was one
matter completed in the financial year 2001-02 in which the Sex Discrimination
Commissioner was amicus curiae. That was the matter of Ferneley
v Boxing Authority of NSW and State of NSW.

Ferneley
v Boxing Authority of NSW and State of NSW

On 26 October
2001, Justice Wilcox granted the Sex Discrimination Commissioner leave
to appear as amicus curiae in the above matter. The hearing
took place before Justice Wilcox on 8 November 2001.

The applicant,
Ms Ferneley, a kick boxer, wanted to be able to compete in New South
Wales where she resides. However, in order to do so, she had to register
as a kick boxer under the Boxing and Wrestling Control Act 1986
(NSW). However section 8(1) of the Act provides that only men
(above the age of 18 years) can register as a boxer. In addition,
section 62D of the Act provides that women shall not take part in
any amateur boxing contest.

The Commissioner
appeared as amicus curiae solely in relation to the interpretation
of the exemption in section 42 of the Sex Discrimination Act,
although at the hearing on 8 November 2001, Justice Wilcox was willing
to hear brief submissions on other aspects of the case.

The Sex Discrimination
Commissioner's submission can be found on the Commission's website
at www.humanrights.gov.au/legal/guidelines/amicus_ferneley_case.html

Justice Wilcox's
decision was handed down on 10 December 2001. He dismissed the applicant's
application on the basis that section 22 of the Sex Discrimination
Act
does not apply to this case. He found that section 18 of the
Sex Discrimination Act applies to this case, which makes it
unlawful for authorities empowered to confer an authorisation or qualification
needed for engaging in an occupation to discriminate on the basis
of sex. Section 18 does not bind the Crown in right of the State and
therefore the actions of the Boxing Authority were not unlawful.

Despite this
finding, Justice Wilcox made findings in relation to section 42 of
the Sex Discrimination Act. He agreed with the submissions of the
Commissioner and held that section 42(1) is concerned only with mixed
sex sporting activity.

Applications under the
Administrative Decisions (Judicial Review) Act

The Commission
or a member of the Commission is sometimes 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 this Act 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 and 2001-02 are the result of the Commission's hearing
and determination function in relation to complaints of unlawful discrimination
ceasing in April 2000 when it was assumed by the Federal Court and
Federal Magistrates Service.

Table 35:
Trends in numbers of Administrative Decisions (Judicial Review) Act
applications where the Commission is named as respondent

Year 95-96 96-97 97-98 98-99 99-00 00-01 01-02
Total
9 11 35 19 22 13 4

International technical
assistance work

This work is
done on behalf of the Australian Agency for International Development
(AusAID) and implemented by the Commission.

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 the Commission's
2000-01 Annual Report, we discussed completion of one component, involving
two staff members of the legal section attending the offices of the
CGE in Johannesburg in June 2001. The end product of that activity
was the development of a draft procedural manual, including guidelines
for assessing appropriate matters for intervention by the CGE and
a procedural strategy for conducting interventions.

In February 2002,
we followed up on that activity, by leading and facilitating a workshop
attended by Commission staff and stakeholders of the CGE. In that
workshop the draft procedural manual was presented, discussed and
finalised.

A further activity
is planned for later this year. This time, CGE staff will attend the
offices of the Commission in Sydney and have the opportunity to see,
first hand, how the Commission conducts its own intervention practice.

Workshop on human rights
theory and practice in Australia and Vietnam

The Legal Section
participated in preparing and presenting a paper at this workshop
in Hanoi organised by the Research Centre for Human Rights in the
Ho Chi Minh National Political Academy and the Centre for Asian and
Pacific Law in the University of Sydney.

The purpose of
the Workshop was to facilitate an exchange of ideas and theories on
human law and practice in Vietnam and Australia. Over two days, a
series of papers were presented including presentations titled The
Australian Justice System and Human Rights Protection, Vietnam's Traditional
values of human rights, Australian Human Rights: Common Law Heritage
and The role of international law in developing Human Rights Law in
National Legal Systems.

Other activities

During 2001-02,
staff of the Legal Section undertook a range of external activities.
These included the following:

Publications

  • Contributing
    an article entitled Human Rights and Equal Opportunity Commissioners
    as Amici Curiae for publication in Law Society journals around
    Australia.
  • Presenting
    a paper at the National Conference of Community Legal Centres in
    Perth entitled The Intervention and Amicus Curiae Functions of
    the Human Rights and Equal Opportunity Commission and Its Commissioners.
  • Providing
    a paper titled Proscription of Hate Speech in Australia to
    the XVIth Congress of the International Academy of Comparative Law.
  • Conferences
    and workshops
  • Being facilitators
    at the National Youth Summit on Racism and at a consultation towards
    the World Conference on Racism, Race Discrimination, Xenophobia
    and Related Intolerance.
  • Attending
    a meeting of the Asia Pacific Forum of National Human Rights Institutions
    in Sri Lanka.
  • Attending
    as an observer the Workshop for Judges on Justiciability of Economic,
    Social and Cultural Rights in South Asia in New Delhi.
  • Attending
    the National Legal Officers Conference for State, Territory and
    Federal Anti-Discrimination Bodies.
  • Attending
    the Alternative Law Week at the University of Sydney and
    the Alternative Law Fair at the University of Technology
    Sydney to discuss with current law students the career opportunities
    that are available at the Commission.