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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

HREOC Report No. 16

CONTENTS

1.
Introduction

2.
The Commission's jurisdiction

3.
Outline of complaint

4.
The inquiry process

5.
Relevant legal framework

6.
Matters in dispute

7.
Findings

8.
Recommendations

9.
Actions taken by the respondent as a result of the findings and recommendations

Appendix
(A) Functions of the Human Rights and Equal Opportunity Commission

1. Introduction

This report to the
Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity
Commission ("the Commission") into a complaint made by Mr Hocine
Kaci on 18 May 2000. The complaint is against the Commonwealth of Australia
(Department of Immigration, Multicultural and Indigenous Affairs) ("DIMIA")
under the Human Rights and Equal Opportunity Commission Act 1986
(Cth) ("HREOC Act"). The complaint was made pursuant to section
20(1)(b) of the HREOC Act, which provides for a complaint to be made in
writing to the Commission alleging that an act or practice is inconsistent
with or contrary to any human right.

2. The Commission's jurisdiction

The Commission's
functions in relation to the investigation and conciliation of complaints
of human rights breaches against the Commonwealth of Australia and its
functions in relation to reporting on complaints with substance that have
not been resolved through the process of conciliation are outlined in
Appendix A to this report.

3. Outline of complaint

In summary, Mr Kaci
arrived in Australia on 14 September 1998 without a valid visa. In accordance
with the Migration Act 1958, he was detained in the Perth Immigration
Detention Centre ("PIDC") and Port Hedland Immigration Reception
and Processing Centre ("PHIRPC"). As a result of alleged unacceptable
behaviour, he was transferred to the CW Campbell Remand Centre ("CWCRC")
on 29 February 2000. Mr Kaci was removed from Australia on 30 August 2000.
Mr Kaci alleged that the conditions in which he was detained at CWCRC
were contrary to the provisions of the International Covenant on Civil
and Political Rights ("ICCPR"). Mr Kaci made further allegations
about breaches of the ICCPR by DIMIA. I found that the acts or practices
complained of in those allegations did not amount to breaches of the ICCPR.

DIMIA denies that
the circumstances of Mr Kaci's detention gave rise to any breach of Mr
Kaci's human rights.

4. The inquiry process

I investigated this
complaint pursuant to section 11(1)(f) of the HREOC Act. While conciliation
was attempted, an agreement was not reached. I therefore formed the view
that this matter was not amenable to conciliation.

I provided a preliminary
report to the parties dated 3 May 2001 which outlined my preliminary findings
in relation to the complaint.

Following the Preliminary
and Further Preliminary Findings, I made directions for the provision
of further evidence and submissions by the parties. By this stage, Mr
Kaci had been deported from the country and his whereabouts were unknown.
Pursuant to section and 27 of the HREOC Act, I invited DIMIA to make further
submissions orally and in writing. DIMIA filed written submissions dated
6 June and 27 November 2001. No further contact was had with Mr Kaci.

On 7 February 2002,
I issued a notice of my findings and recommendations in relation to the
complaint under section 29(2) of the HREOC Act.

5. Relevant legal framework

(i) The HREOC
Act

Section 20(1)(b)
of the HREOC Act provides for a complaint to be made in writing alleging
that an act or practice is inconsistent with or contrary to any human
right.

Where a complaint
is received by the Commission, it has the function, pursuant to Section
11(1)(f) of the HREOC Act, to inquire into any act or practice that may
be inconsistent with or contrary to human rights.

(ii) Migration
Act

The Migration Act
1958 provides that all unlawful non-citizens must remain in detention
unless they are granted a valid visa or leave the country. In particular,
section 5(1) of the Migration Act 1958 allows for the detention of immigration
detainees to occur within state prisons.

(iii) ICCPR

The ICCPR entered
into force for Australia on 13 November 1980. The ICCPR applies to all
persons within the territory of a State Party regardless of their nationality
or status as a non?citizen. Thus, the ICCPR applies to all asylum seekers,
refugees and persons within Australia's jurisdiction whose applications
for refugee protection have been rejected.
The only article of the ICCPR that I have found to be breached by DIMIA
is article 10(2)(a). Article 10(2)(a) of the ICCPR provides:

2. (a) Accused
persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate
to their status as unconvicted persons;"

(iv) Migration
Series Instruction 244: Transfer of Detainees to State Prisons ("MSI-244")

The Migration Act
1958 is silent on the circumstances which would justify the transfer of
an immigration detainee from an Immigration Detention Centre ("IDC")
to a State prison. The matter is instead regulated by Departmental policy
as set out in MSI-244. MSI-244 governs the circumstances and procedures
in which an immigration detainee may be transferred to a State prison
and detained therein.

Section 2.1 of MSI-244
provides:

"Detention
of immigration detainees within prisons occurs as a last resort. In
this restricted context it can occur for a number of reasons, which
include:

Behavioural
Concerns

  • While being
    held at an IDC a person's beha
    viour
    is considered to be unacceptable for the low security IDC environment,
    because of:

    • the risk to
      other detainees;
    • violent behaviour
      and/or unlawful behaviour, the inability of management and the detainee
      to resolve the unacceptable behaviour; or
    • the risk
      of absconding from the lawful custody; or
  • at the time of
    being taken into immigration detention a person is assessed as being
    unsuitable to mix with other detainees at an IDC…."

Section 7.1 of MSI-244
sets out a procedure for review of the place of detention.

This section requires
that an initial review of the detention be conducted by DIMIA within a
short period of time of the transfer taking place. Section 7.3 of MSI-244
requires further reviews to take place at least at monthly intervals.
In particular, Sections 7.3.2 and 7.3.3 provide:

"7.3.2.
Where it is determined from reports received from custodial authorities
that the detainee's behaviour or condition has modified to an acceptable
degree to warrant the return to an IDC, transfer of custody should be
undertaken.

7.3.3. Information
received from custodial officers or institutional welfare/social workers
should also be used to determine when a return to an IDC is appropriate…"

6. Matters in dispute

  • Was there a breach
    of Article 10(2)(a) of the ICCPR as a result of the conditions in which
    Mr Kaci was held in CWCRC?

A summary of DIMIA's
position on this issue is as follows:

Conditions
of detention in CWCRC

In his complaint
to the Commission, Mr Kaci refers to his situation in the remand centre
as "not a good one" and states that he was "often the target
of violent prisoners". The Review of Detention Report of 10 May 2000
refers to Mr Kaci telling the review officer that he had been "picked
on by several Aboriginal and British inmates" and that "he had
been moved from unit 7 to 10 to 6 because of inmates seeking to fight
with him". DIMIA also provided an undated minute from the Assistant
Superintendent of the remand centre which states that Mr Kaci had reported
feeling "uneasy" in his unit and had asked for a transfer to
another unit to be with a fellow detainee.

DIMIA does not accept
that Mr Kaci's rights were breached under Article 10(2)(a) of the ICCPR
which provides that detainees should be segregated from convicted persons
except "in exceptional circumstances" and subject to separate
treatment. Although DIMIA concedes that Mr Kaci was not segregated from
convicted prisoners during his detention in CWCRC, DIMIA considers there
were exceptional circumstances that led to Mr Kaci being detained with
convicted prisoners. In particular, Mr Kaci was moved from the self-care
facility into the general population of the CWCRC because his behaviour
was not appropriate for the lower level security of the self-care facilities.
According to DIMIA, while the prison authority is responsible for the
security classification of a detainee held in prison DIMIA officers are
required to provide sufficient background information to ensure that the
prison authority appropriately assesses immigration detainees and places
them in suitable accommodation in the correctional facility. In any event,
DIMIA contends that it cannot be found to have breached a provision of
the ICCPR against which Australia has maintained a reservation, as stated
in a letter dated 6 June 2001:

DIMA does not accept
that Mr Kaci's rights were breached under Article 10(2)(a), which provides
that detainees should be segregated from convicted persons except "in
exceptional circumstances". These were clearly exceptional circumstances.

But in any event,
DIMA cannot be found to have breached a provision of the ICCPR against
which Australia has maintained a reservation. Australia, in its instrument
of ratification of the ICCPR, made the following reservation to paragraph
2 of Article 10:

"In relation
to paragraph 2 (a) the principle of segregation is accepted as an objective
to be achieved progressively. In relation to paragraph 2 (b) and 3 (second
sentence) the obligation to segregate is accepted only to the extent
that such segregation is considered by the responsible authorities to
be beneficial to the juveniles or adults concerned".

In Australia's
reports to the United Nations Human Rights Committee, the Commonwealth
has set out clearly the reasons for this reservation. These include
the prohibitive cost of implementation of separation, in some instances,
in the Australian context and that in some cases segregation might in
fact entail solitary confinement or living in conditions less amenable
than those of the general prison population.

DIMA cannot accept
that Mr Kaci's rights were breached under Article 10(2)(a).

7. Findings

Where a complaint
is received by the Commission, it is required by section 11(1)(f) of the
HREOC Act to inquire into:

  • any act or practice
  • that may be inconsistent
    with or contrary to any human right.

7.1 Was 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. These words have their ordinary meaning: that is,
the noun "act" denotes a thing done and the noun "practice"
denotes a course of repeated conduct.

An "act"
or "practice" invokes the human rights complaints jurisdiction
of the Commission where the relevant act or practice is within the discretion
of the Commonwealth, its officer or agents. If the automatic operation
of a law requires that the act or practice be done by or on behalf of
the Commonwealth, its officers or its agents, and there is no discretion
involved, these actions and practices will be outside the scope of the
Commission's human rights complaints jurisdiction.

The Migration Act
provides that all "unlawful non-citizens" must be held in immigration
detention unless they are granted a valid visa or leave the country. The
Commission, in its report, Those who've come across the seas: Detention
of unauthorised arrivals
, has found that these provisions in the Migration
Act
, which establish a system of mandatory detention, contravene Australia's
human rights obligations under Article 9 of the ICCPR and Article 37 of
the Convention on the Rights of the Child. Consequently, the Commission
has recommended that the provisions in the Migration Act in relation
to mandatory detention be amended. However, while this law remains in
place a person's detention under the Migration Act occurs by reason of
the automatic operation of the law and does not constitute an act or practice
into which the Commission could inquire.

The Migration
Act
also provides that an unlawful non-citizen may be held in immigration
detention in an IDC or a State prison. Despite the vastly different nature
of detention in an IDC as compared to detention within a State prison,
the Migration Act provides no guidance as to when a detainee may
be held in a State prison rather than an IDC. This issue is instead regulated
by Governmental policy and procedure. As a matter of Government policy,
immigration detainees are held in purpose built IDC's and detention of
these detainees in State prisons occurs as a last resort and only in clearly
defined circumstances. A decision to transfer a person from an IDC to
a State prison and a decision to maintain a person's detention in the
State prison is a policy decision which involves the exercise of discretion
by DIMIA and its officers. Such decisions are therefore "acts"
done by the Commonwealth, as defined in Section 3 of the HREOC Act, and
within the Commission's complaints jurisdiction.

7.2 Were the acts
inconsistent with and/or contrary to the human rights recognised in the
ICCPR ?

Conditions of
detention in CWCRC

The issue I have
to determine is this: was there a breach of Article 10(2)(a) of the ICCPR
as a result of the conditions in which Mr Kaci was held in CWCRC ?

Article 10(2)(a)
applies to persons in all forms of detention. Article 10(2)(a) imposes
two requirements on a State Party. The first is that, save in exceptional
circumstances, an accused person shall be segregated from convicted persons.
Australia has a reservation that states:

"In relation
to paragraph 2(a) the principle of segregation is accepted as an objective
to be achieved progressively."

Article 10(2)(a)
of the ICCPR also obliges Australia to ensure that a person in detention
is subject to separate treatment appropriate to his or her status as an
unconvicted person. This right is not affected by the reservation to Article
10(2)(a) as that reservation is limited in its terms to the principle
of segregation. As is the case in domestic law, reservations to the ICCPR
(being derogations from fundamental human rights) are construed narrowly.

The UN Standard
Minimum Rules for the Treatment of Prisoners
(Standard Minimum Rules)
and the Body of Principles for the Protection of all Persons under
any Form of Detention or Imprisonment provide guidance as to nature of
the separate treatment Australia is obliged to accord to unconvicted persons
under Article 10(2)(a). Although these instruments are not binding on
Australia, they have been recognised by the UNHRC as relevant UN standards
applicable to the treatment of detained persons.

Rule 95 of the Standard
Minimum Rules
provides that persons arrested or imprisoned without
charge shall be given the same protection as that given to arrested or
remanded prisoners under Part II, section C. Part II, section C of the
Standard Minimum Rules provides:

"C. PRISONERS
UNDER ARREST OR AWAITING TRIAL

84. (1) Persons
arrested or imprisoned by reason of a criminal charge against them,
who are detained either in police custody or in prison custody (jail)
but have not yet been tried and sentenced, will be referred to as "untried
prisoners,' hereinafter in these rules.

(2) Unconvicted
prisoners are presumed to be innocent and shall be treated as such.

(3) Without
prejudice to legal rules for the protection of individual liberty or
prescribing the procedure to be observed in respect of untried prisoners,
these prisoners shall benefit by a special regime which is described
in the following rules in its essential requirements only.

85. (1) Untried
prisoners shall be kept separate from convicted prisoners.

(2) Young untried
prisoners shall be kept separate from adults and shall in principle
be detained in separate institutions.

86. Untried
prisoners shall sleep singly in separate rooms, with the reservation
of different local custom in respect of the climate.

87. Within the
limits compatible with the good order of the institution, untried prisoners
may, if they so desire, have their food procured at their own expense
from the outside, either through the administration or through their
family or friends. Otherwise, the administration shall provide their
food.

88. ( I ) An
untried prisoner shall be allowed to wear his own clothing if it is
clean and suitable.

(2) If he wears
prison dress, it shall be different from that supplied to convicted
prisoners.

89. An untried
prisoner shall always be offered opportunity to work, but shall not
be required to work. If he chooses to work, he shall be paid for it.

90. An untried
prisoner shall be allowed to procure at his own expense or at the expense
of a third party such books, newspapers, writing materials and other
means of occupation as are compatible with the interests of the administration
of justice and the security and good order of the institution.

91. An untried
prisoner shall be allowed to be visited and treated by his own doctor
or dentist if there is reasonable ground for his application and he
is able to pay any expenses incurred.

92. An untried
prisoner shall be allowed to inform immediately his family of his detention
and shall be given all reasonable facilities for communicating with
his family and friends, and for receiving visits from them, subject
only to restrictions and supervision as are necessary in the interests
of the administration of justice and of the security and good order
of the institution.

93. For the
purposes of his defence, an untried prisoner shall be allowed to apply
for free legal aid where such aid is available, and to receive visits
from his legal adviser with a view to his defence and to prepare and
hand to him confidential instructions. For these purposes, he shall
if he so desires be supplied with writing material. Interviews between
the prisoner and his legal adviser may be within sight but not within
the hearing of a police or institution official."

DIMIA accepts that
Mr Kaci was not segregated from convicted prisoners during his detention
in CWCRC. Thus during this period, Mr Kaci was treated in exactly the
same manner as convicted prisoners and did not enjoy the entitlements
detailed above in Part II, Section C of the Standard Minimum Rules. In
particular, it is evident that Mr Kaci did not benefit from a "special
regime" as required by the
Standard Minimum Rules. Therefore, I find that Article 10(2)(a) of the
ICCPR has been breached.

8. Recommendations

Section 29(2) of
the HREOC Act requires that, where I conclude that an act or practice
is inconsistent with or contrary to any human right, I should make findings
to that effect and recommendations for preventing a repetition of the
act or a continuation of the practice.

I recommend that
the Commonwealth take immediate steps to comply with its obligations under
article 10(2)(a) of the ICCPR. DIMIA should ensure that immigration detainees
held in State prisons are subject to separate treatment appropriate to
their status as unconvicted persons. At a minimum the detainee should
be entitled, in accordance with Part II, Section C of the Standard Minimum
Rules to:

  • sleep singlely
    in separate sleeping quarters;
  • within the limits
    compatible with the good order of the State prison and if the detainee
    wishes, have his/her food procured at his/her own expense from the outside,
    either through the administration or through their family or friends;
  • wear his/her
    own clothing if it is clean and suitable;
  • if the detainee
    wears prison dress, it shall be different from that supplied to convicted
    prisoners;
  • work, but shall
    not be required to work. If the detainee chooses to work, he/she shall
    be paid for it;
  • procure at his/her
    own expense or at the expense of a third party such books, newspapers,
    writing materials and other means of occupation as are compatible with
    the interests of the administration of justice and the security and
    good order of the institution;
  • be visited and
    treated by his/her own doctor or dentist if there is reasonable ground
    for his application and s/he is able to pay any expenses incurred;
  • all reasonable
    facilities for communicating with his/her family and friends, and for
    receiving visits from them, subject only to restrictions and supervision
    as are necessary in the interests of the administration of justice and
    of the security and good order of the institution; and
  • receive visits
    from his/her legal adviser with a view to his/her defence and to prepare
    and hand to him/her confidential instructions. For these purposes, he/she
    shall if he/she so desires be supplied with writing material. Interviews
    between the prisoner and his/her legal adviser may be within sight but
    not within the hearing of a police or institution official.

9. Actions taken by the respondent
as a result of the findings and recommendations

Under section 29(2)(e)
of the HREOC Act, the Commission is required to state in its report to
the Attorney-General whether the respondent has taken or is taking any
action as a result of its findings and recommendations.

On 7 February 2002,
the Commission wrote to DIMIA to seek its advice as to what action it
had taken or proposed to take as a result of the findings and recommendations.
In a letter to the Commission dated 6 March 2002, Mr Andrew Metcalfe,
on behalf of DIMIA, provided DIMIA's comments in relation to the Notice.
Those comments, in full, were as follows:

I am writing
in response to your Notice of an Inquiry under the HREOC Act, dated
7 February 2002, into a complaint by Mr Hocine Kaci. I appreciate the
opportunity to comment on your findings in this matter.

Findings
…….
The Department welcomes your findings that the transfer to and continued
detention of Mr Kaci in CW Campbell Remand Centre (CWCRC) did not breach
Article 9 and Article 10(1) of the International Covenant on Civil and
Political Rights (ICCPR).

The Department
does not, however, agree with your finding that the conditions in which
Mr Kaci was held in CWCRC occasioned a breach of Article 10(2)(a).

You state at
page 13 of your Notice of Findings that:

"DIMA
accepts that Mr Kaci was not segregated from convicted prisoners during
his detention in CWRC. Thus during this period, Mr Kaci was treated
in exactly the same manner as convicted prisoners and did not enjoy
the entitlements detailed above in Part ll, Section C of the Standard
Minimum Rules. In particular, it is evident that Mr Kaci did not benefit
from a "special regime" as required by these Rules."

It is on this
basis that you find that Article 10(2)(a) of the ICCPR has been breached.

The Department
submits that although the Standard Minimum Rules may be taken into account
in determining the standards for humane conditions of detention, the
Standard Minimum Rules do not form a code, nor are States Parties required
to adhere to the Standard Minimum Rules in order to comply with the
ICCPR.

Australia is
not bound under international law to comply with the Standard Minimum
Rules, a fact that you acknowledge on page 12 of your findings. As such,
the Department submits that it is not reasonable to find a breach of
Article 10(2)(a) on the basis of perceived non-compliance with a non-binding
instrument.

Further, while
the Department does accept that Mr Kaci was not segregated from convicted
prisoners during his detention in CWCRC, it does not accept that this
necessarily leads to a conclusion that Mr Kaci was treated in exactly
the same manner as convicted prisoners.

In Western Australia,
immigration detainees in state correctional facilities are held under
the same conditions as a prisoner on remand. These conditions differ
from those that apply to sentenced prisoners.

As the Department
stated in its correspondence to the Commission dated 6 October 2000
and 10 January 2001, CWCRC was the only adult remand centre in the Perth
metropolitan area at the time of Mr Kaci's transfer. Due to capacity
issues faced by the Ministry of Justice in WA, CWCRC housed both convicted
and unconvicted prisoners.

As has been
stated in previous submissions, Mr Kaci was originally detained in a
self care unit within CWCRC. The unit provided selected prisoners the
opportunity to access limited cooking facilities and was utilised as
a multi-cultural unit. As has been previously stated, Mr Kaci attempted
to assault a corrections officer and was moved from the self care facility
as a result. Further, during an interview with his detention review
officer on 7 April 2000 (provided to the Commission on 6 October 2000),
Mr Kaci stated that he was being treated reasonably and commented that
he felt like he was in a hotel not a prison.

Recommendations

You have recommended
that:

The Department
should insure that immigration detainees held in state prisons are subject
to separate treatment appropriate to their status as unconvicted persons.

The Department
submits that there is no direct authority on whether Article 10(2)(a)
applies to administrative detainees held in a state correctional facility.
The distinction between convicted and unconvicted persons in Article
10 arises from the right of such persons to the enjoyment of the presumption
of innocence in criminal proceedings (Article 14(2)). Consequently,
the language of Article 10(2)(a) is directed to 'accused' persons.

Nevertheless
the Department is endeavouring to ensure that, where practicable, detainees
held in state correctional facilities are subject to treatment appropriate
to their status as unconvicted persons. However, as has been stated
in previous submissions, decisions on the security classification of
detainees in state correctional facilities are ultimately determined
by the state correctional authority. Departmental officers are required
to provide sufficient case background information to ensure that the
correctional authority appropriately assesses immigration detainees
and places them in suitable accommodation in the correctional facility.

Negotiations
are continuing with a number of State correctional authorities on Memoranda
of Understanding with respect to the detention of immigration detainees
in state correctional facilities. The conditions under which detainees
are held in state facilities necessarily form part of the negotiations.

You have also
recommended that detainees should be entitled to be treated in accordance
with Part II Section C of the UN Standard Minimum Rules for the Treatment
of Prisoners (Standard Minimum Rules).

As has been
stated, Australia is not bound under international law to comply with
the Standard Minimum Rules, a fact that you acknowledge on page 12 of
your findings. Nevertheless, the treatment of detainees in state correctional
facilities in most instances complies with Part II Section C of the
Standard Minimum Rules.

For example,
as has been indicated above, conditions for immigration detainees in
state correctional facilities in Western Australia differ from those
that apply to sentenced prisoners.

In Victoria,
it is normal for detainees held in state correctional facilities to
be detained in accordance with the principles outlined in your recommendations.
Detainees in Victorian facilities:

  • are usually
    housed in a single cell, however, some detainees prefer to share sleeping
    quarters and this option is available.
  • can buy and
    prepare their own food if they wish to do so.
  • are free
    to wear their own clothes, however, all inmates are issued with t-shirts,
    track suit pants and shoes -there is no prison uniform.
  • are paid
    if they choose to undertake a work like activity program.
  • can be visited
    and treated by their own doctor or dentist.
  • can arrange
    newspaper and magazine subscriptions, buy books and obtain books from
    the library. They can also buy newspapers, magazines, writing materials,
    envelopes, stamps, telephone cards and food from the canteen.
  • can make
    telephone calls from their unit but they cannot receive telephone
    calls in their unit. They are also allowed reasonable visits from
    friends and family.
  • are provided
    with facilitated visits from their legal adviser. These visits are
    private.

In New South
Wales, it is normal for immigration detainees to be classified as civil
inmates. Generally speaking, civil inmates are treated in much the same
way as unconvicted inmates, except for some additional privileges.

In Queensland,
detainees are held in a separate wing of the Arthur Gorrie Correctional
Centre and, as such, are held separately from both convicted and unconvicted
prisoners.

Thank you for providing
the Department with the opportunity to comment on your report.

Dated at Sydney this

Professor Alice Tay
President

Appendix A

Functions of the
Human Rights and Equal Opportunity Commission

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, section 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 section 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 (section 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 section 10A 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 and/or oral submissions in relation to
the complaint (section 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 (section 29(2)(a) of the HREOC
Act). The Commission may make recommendations for preventing a repetition
of the act or practice, the payment of compensation or any other action
or remedy to reduce the loss or damage suffered as a result of the breach
of a person's human rights (sections 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 and details of any actions that
the person is taking as a result of the findings and recommendations of
the Commission (sections 29(2)(d) and (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 section 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 (section 20(2) of the HREOC Act), including where
the subject matter of the complaint has already been adequately dealt
with by the Commission (section 20(2)(c)(v) of the HREOC Act).

Last
updated 27 June 2002.