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HREOC Report No. 22

Report of an inquiry into
a complaint by Mr XY concerning his continuing detention despite having
completed his criminal sentence

HREOC Report No. 22


1.
Introduction

2.
Findings of Fact

3.
Relevant Legal Provisions

4.
Preliminary Findings

5.
The Respondent's Response to my Preliminary Findings

6.
The Complainant's Response to my Preliminary Findings

6.1
Letter dated 25 April 2002

6.2 Letter dated 7 May 2002

7.
Responses to my Invitation for Further Submissions

8.
Article 9

8.1
International jurisprudence and commentary

8.2 Domestic case law

9.
Findings

10.
Submissions on Recommendations

10.1
Introduction
10.2 Submissions made on a possible recommendation
for Mr XY's release

10.3 Submissions made on a possible recommendation
on financial compensation

11.
Recommendations

11.1
Recommendation for the complainant's release

11.2 Recommendation for financial compensation

12.
Actions Taken by the Respondent as a Result of Findings and Recommendations

APPENDIX
1 - Functions of the Human Rights and Equal Opportunity Commission


1. Introduction

This is a Report
of the findings and reasons for findings made by the Human Rights and
Equal Opportunity Commission ("the Commission") following an
inquiry into a complaint lodged by Mr XY ("the complainant").
The complaint is against the Commonwealth of Australia (Department of
Immigration, Multicultural and Indigenous Affairs) ("DIMIA").
The complaint was made pursuant to section 20(1)(b) of the Human Rights
and Equal Opportunity Commission Act
1986 (Cth) ("the HREOCA"),
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.

The complainant came
to Australia in February 1982, and was granted permanent residency in
July 1988. He was born in Germany, however he claims that he is a stateless
person of no nationality. The complainant was convicted of criminal offences
in Australia, and served his criminal sentence in Western Australia. He
was served with a deportation order by DIMIA on 23 July 1997. However,
he has not yet been deported as negotiations attempted by DIMIA have not
secured a country that will accept the complainant. He completed his criminal
sentence on 11 June 2000 and since that date has been detained pursuant
to section 253 of the Migration Act 1958 (Cth) ("the Migration
Act"), which provides that if a person is subject to a deportation
order, they can be detained in immigration detention pending their deportation.
Negotiations were undertaken by DIMIA with the Polish government in an
attempt to deport the complainant to Poland. However, DIMIA advised in
a letter dated 25 June 2002 that negotiations with Poland had ceased,
as the Polish government would not issue the complainant with a certificate
of Polish citizenship. In that letter, DIMIA also advised that negotiations
with the German government for the complainant's possible deportation
to Germany, which had commenced as early as 1997, were continuing. At
the time the complaint was lodged, the complainant was being held at Albany
Regional Prison ("the Prison"). He is currently being held at
the Perth Immigration Detention Centre ("PIDC").

The complainant alleges
that his human rights are being breached because although he has served
his criminal sentence, he continues to be detained because his deportation
to another country cannot be secured. The complainant is concerned about
the continuing and indefinite nature of his detention and alleges that
it amounts to a breach of his rights under Article 9(1) of the International
Covenant on Civil and Political Rights
("ICCPR").

Article 9(1) provides
as follows:

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.

I investigated the
complaint pursuant to section 11(1)(f) of the HREOCA and conciliation
was attempted. However, agreement was not able to be reached and I formed
the view that these matters were not amenable to conciliation . [1]

I provided a preliminary
report to the parties dated 27 February 2002 which outlined my preliminary
findings in relation to the complaint. In summary, the preliminary findings
were that DIMIA, on behalf of the Commonwealth of Australia, had breached
the complainant's human rights in that violations of article 9(1) of the
ICCPR had occurred. My preliminary opinion was that the complainant's
continued detention was arbitrary and thus in breach of article 9(1),
as there was no realistic indication that the complainant would be deported
in the near future. [2] I issued a notice of findings
to the parties on 23 September 2002.

2.
Findings of Fact

In my preliminary
findings dated 27 February 2002 I made a number of findings of fact. Taking
into account all of the information provided by the parties, my findings
of fact relevant to the notice I issued on 23 September 2002 are as follows:

2.1 The complainant
arrived in Australia in February 1982 on a short-term visitor visa.
His travel document at the time of his arrival in Australia was a Reiseauweis
- a German travel document issued to stateless persons. In December
1982 he married an Australian permanent resident. He applied for a permanent
residence visa, which was granted in July 1988. In 1991 the complainant
was convicted of sexual assault offences that incurred a prison sentence
of eleven and a half years. Mr XY was eligible for parole on 17 November
1997, but was not granted parole at any time.

2.2 The complainant
was served with a deportation order by the respondent on 23 July 1997.
The order was made pursuant to section 200 of the Migration Act. His
permanent residence visa has not been revoked.

2.3 The complainant
served his criminal sentence in the Prison. Upon completion of his sentence
on 11 June 2000, he remained in the Prison in immigration detention
pursuant to section 253 of the Migration Act until March 2002. He was
then transferred to the PIDC, where he currently awaits deportation.
Mr XY has thus been in immigration detention awaiting deportation after
the expiration of his criminal sentence for approximately 28 months
as at the date of this report.

2.4 The complainant
claims that he is a "stateless" person who was born in Germany
in 1951 of "stateless" parents. He asserts that his father
was born in Poland and his mother in Germany. The complainant also claims
that his mother was half Jewish. In a letter to the Commission dated
13 December 2000, Mr W J Farmer on behalf of DIMIA stated in relation
to the complainant's claim of statelessness, that he "do(es) not
accept this claim on face value". However, Mr Farmer refers to
the possibility of Germany having obligations in relation to Mr XY "under
the Convention on the Reduction of Statelessness" in a letter dated
23 April 2002, and again in a letter dated 25 June 2002. In my view,
it is not necessary for me to make a finding as to the complainant's
claim of statelessness in order to deal with the complaint before me.

2.5 Since some
time before July 1997, the respondent has attempted to negotiate the
complainant's deportation to both Poland and Germany. DIMIA has submitted
that "some enquires were made with local representatives of both
the Polish and German governments" about the possible return of
Mr XY prior to the issue of the deportation order in July 1997. I have
not been provided with details regarding the nature and extent of these
enquiries and this appears to be partly due to the sensitivity of some
of the negotiations.

2.6 DIMIA also
undertook enquiries to establish whether it was possible for the complainant
to be deported to Israel. I accept that DIMIA investigated Mr XY's claim
that his mother was half Jewish, and whether there was any possibility
of Mr XY being deported to Israel due to a right of nationality he may
have had as a descendent of Jewish parents. Although no dates were provided
to me by DIMIA relating to the investigation process, I find that these
investigations were concluded sometime before December 2000, and I accept
that they ceased on the basis that there was no evidence to link Mr
XY or his mother to Israel.

2.7 I accept DIMIA's
submission in its letter dated 12 February 2001 that enquiries with
both the Polish and German governments continued in some form from 1997
until 2001, and that the intervention and assistance of the Department
of Foreign Affairs and Trade was sought intermittently during this period.
In a letter dated 1 March 2002, the Polish Consulate advised DIMIA that
the Polish government could not recognise the complainant as a Polish
citizen. DIMIA confirmed in a letter dated 25 June 2002 that the letter
from the Polish Consulate led to the cessation of negotiations with
the Polish government for Mr XY's deportation to Poland.

2.8 The Commission
was provided with copies of email correspondence (sent on various dates
beginning 3 August 2001 and ending 14 November 2001) between DIMIA officers
in Canberra and DIMIA officers in Berlin which indicated that despite
continuing enquires, DIMIA officers in Berlin were making slow, if any,
progress in securing talks with the German government in relation to
Mr XY's deportation. In an email provided to the Commission, dated 14
November 2001, Ms Angela Staples states that both the German Consulate
and German Embassy in Australia were unwilling to act in this matter
without instruction from Germany.

3.
Relevant Legal Provisions

When a complaint
is received by the Commission, it has the function, pursuant to section
11(1)(f) of the HREOC Act, of inquiring into:

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

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. [3]

An "act"
or "practice" only 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. When an action of DIMIA or
its officers is required by the Migration Act and there is no discretion
involved at all, these actions or practices are outside the scope of the
Commission's human rights complaints jurisdiction. [4]

Bearing this in mind,
it is necessary to set out the relevant provisions of the Migration Act
that relate to the detention of the complainant. [5]

Section 200 provides
that:

Section 200
Deportation of certain non-citizens

The Minister may
order the deportation of a non-citizen to whom this Division applies.

Sections 201 and
206 are in the Division referred to in section 200 and provide as follows:

Section 201
Deportation of non-citizens in Australia for less than 10 years who
are convicted of crimes

Where:

(a) a person who
is a non-citizen has, either before or after the commencement of this
section, been convicted in Australia of an offence;

(b) when the offence
was committed the person was a non-citizen who:

(i) had been
in Australia as a permanent resident:

(A) for a period
of less than 10 years; or

(B) for periods
that, when added together, total less than 10 years; or

(ii) was a citizen
of New Zealand who had been in Australia as an exempt non-citizen
or a special category visa holder:

(A) for a period
of less than 10 years as an exempt non-citizen or a special category
visa holder; or

(B) for periods
that, when added together, total less than 10 years, as an exempt
non-citizen or a special category visa holder or in any combination
of those capacities; and

(c) the offence
is an offence for which the person was sentenced to death or to
imprisonment for life or for a period of not less than one year;

section 200 applies
to the person

Section 206 Deportation
order to be executed

(1) Where the Minister
has made an order for the deportation of a person, that person shall,
unless the Minister revokes the order, be deported accordingly.

(2) The validity
of an order for the deportation of a person shall not be affected by
any delay in the execution of that order.

In relation to
the detention of potential deportees, section 253 provides as follows:

Section 253 Detention
of deportee

(1) Where an order
for the deportation of a person is in force, an officer may, without
warrant, detain a person whom the officer reasonably supposes to be
that person.

(2) A person detained
under subsection (1) or (10) may, subject to this section, be kept in
immigration detention or in detention as a deportee in accordance with
subsection (8).

(3) Where an officer
detains a person under subsection (1) or (10), the officer shall forthwith
inform the person of the reason for the detention and shall, if that
person so requests, furnish to him or her, as soon as practicable, particulars
of the deportation order.

…

(8) A deportee
may be kept in immigration detention or such detention as the Minister
or the Secretary directs:

(a) pending deportation,
until he or she is placed on board a vessel for deportation;

(b) at any port
or place in Australia at which the vessel calls after he or she has
been placed on board; or

(c) on board
the vessel until its departure from its last port or place of call
in Australia.

(9) In spite of
anything else in this section, the Minister or the Secretary may at
any time order the release (either unconditionally or subject to specified
conditions) of a person who is in detention under this section.

(10) An officer
may, without warrant, detain a person who:

(a) has been
released from detention under subsection (9) subject to conditions;
and

(b) has breached
any of those conditions.

(11) Nothing contained
in, or done under, this section prevents the Supreme Court of a State
or Territory or the High Court from ordering the release from detention
of a person held in detention under this section where the Court finds
that there is no valid deportation order in force in relation to that
person.

Section 253 clearly
gives the Minister or Secretary a discretionary power in relation to persons
in immigration detention. The decision to place Mr XY in immigration detention,
and to continue to hold in him in such detention, is therefore a decision
that is subject to the Commission's human rights complaints jurisdiction.

4. Preliminary
Findings

In my preliminary
findings, dated 27 February 2002, I formed the preliminary view that breaches
of Article 9 of the ICCPR had occurred. My stated reasons for this preliminary
finding were as follows:

"5.12 There
is no evidence that the respondent has considered the possibility that
it may not be able to locate an appropriate country of destination and
what it will do if this occurs. The respondent is averse to releasing
the complainant back into the community because of the nature of his
crimes and an alleged threat to harm his ex-wife and her daughter. I
note that the respondent has not provided any objective evidence regarding
the complainant's likelihood of recidivism or an assessment of the complainant's
rehabilitation in prison. In any case, I consider that the complainant
has served his custodial sentence, and like anyone else, should be released.
The fact that the respondent considers that there is a possibility the
complainant may re-offend, is not a legitimate basis for continuing
to keep him in custody.

5.13 The Department's
primary consideration has been the type of crimes committed by the complainant
and the possibility of his presenting himself for deportation if released,
as well as the Department's view on his suitability for detention in
Immigration Detention Centres. I consider that the complainant continues
to be punished for crimes for which he has completed the sentence imposed
upon him by the criminal courts.

5.14 I am of the
preliminary view that there is no realistic indication that the complainant
will be deported soon and thereby released and that his continued detention
in Albany Regional Prison is unjust and unreasonable.

5.15 I am of the
preliminary view that the continued detention of the complainant in
Albany Regional Prison is arbitrary and breaches his human rights pursuant
to Article 9(1) of the ICCPR."

The respondent has
provided me with written submissions in response to my preliminary findings,
and the complainant provided me with further materials in response to
my findings. The submissions and materials provided are discussed in detail
below.

5.
The Respondent's Response to my Preliminary Findings

In a letter dated
23 April 2002, Mr W J Farmer, on behalf of DIMIA, provided the following
response to the preliminary findings:

"In my letter
to Professor Tay, dated 13 December 2000, I set out in detail my reasons
for taking the view that the detention of the complainant is not arbitrary.
I maintain that view. The detention of the complainant is pursuant to
the exercise of discretionary powers under section 253 of the Migration
Act and relates to specific persons against whom deportation orders
have been made. Further, subsection 253 (8) (a) indicates that such
a discretionary detention be implemented until the person is deported.
This section also contains provision for the release of persons from
detention at the order of the Minister or Secretary. These clauses give
a defined end point to the detention period. Detention is limited to
the time the person is removed from Australia or at the stage at which
they are released.

The Department
has been advised that Poland will not issue the complainant with a certificate
confirming his Polish citizenship. However, the Department is continuing
negotiations with Germany on the complainant's return to his former
country of birth and residence. The complainant clearly has greater
family and other ties to Germany than Australia and legal advice from
the International Law Section of the Attorney General's Department indicates
that Germany may be obligated under the Convention on the Reduction
of Statelessness and the European Convention on Nationality to facilitate
the complainant's return. These issues are currently being examined
and pursued by our office in Berlin.

You would be aware
that DIMIA has had other instances where negotiations on the return
of deportees have been protracted yet removal has been achieved. The
Department is making all efforts to ensure this occurs in the complainant's
case in as short a time as possible."

6.
The Complainant's Response to my Preliminary Findings

6.1 Letter
dated 25 April 2002

The
complainant's solicitor provided an initial response to the preliminary
findings in a letter dated 25 April 2002. Enclosed with the letter were
two documents; a document addressed to Mr XY referred to as a "German
Deportation Order" ("the German Order"), and an English
translation of the German document.

The response provided
in the letter is as follows:

"With reference
to the preliminary finding of the Tribunal President Alice Tay and your
invitation for any further submissions, Mr XY respectfully supports
the findings and there are no further submissions, which he wishes to
make, other than a plea that [the]Commission uses whatever power and
influence that it may have to secure his release from indefinite detention
and that steps be taken in this regard as soon as possible in view of
the length of his detention.

Mr XY has asked
me to pass on to the Commission a Deportation Order which he received
from Germany in July 2000, which makes it clear that there is no possible
point in the DIMIA officers continuing to negotiate with the German
authorities. It is not clear from the correspondence that either your
Commission, or the relevant DIMIA authorities, have this document. I
now enclose a copy of the German original and of the English translation.
Please note that page 4 of the German original does not appear to have
been translated into English. Mr XY at my request [h]as added an informal
translation of page 4."

The German Order
was issued by the Town Office of the Hannover Immigration Office, and
is dated 26 July 2000. It is discussed in further detail in parts 9 and
10 of this notice. In summary, the English translation of the German Order
relevantly states the following:

"During the
process of ordering the deportation the public interest in a deportation
order and your private interest to live in Germany were to be duely
[sic] considered and weighed against each other…

Your behaviour
demonstrates that you have a high criminal disposition. This makes us
fear that you will in future again contravene the law. This risk cannot
be expected to be accepted by the public. The deportation is therefore
necessary for social-preventative reasons…

Your deportation
order is for the time being unlimited."

6.2
Letter dated 7 May 2002

Further information
was provided to me by the complainant in a letter dated 7 May 2002. This
letter enclosed a copy of a letter to Mr XY from Julie Keenan of Unauthorised
Arrivals, DIMIA, dated 2 May 2002, in response to a request made by Mr
XY under the Freedom of Information Act 1982 (Cth) ("FOI Act").

Mr XY had made a
request to DIMIA on 12 April 2002 for documents to be released to him
under provisions of the FOI Act. His request is recorded by Julie Keenan
in her letter as being for "the last final decision made in Warsaw
Poland to the Australian Immigration Department", and for the "last
final decision made in Berlin Germany to the Australian Immigration Department."
Ms Keenan stated in her letter:

"I am pleased
to advise you that I have decided to release in full a document that
is the last final decision made in Warsaw Poland to the Australian Immigration
Department. A copy of the document is attached to this letter.

In relation to
your request for a document that is the last final decision made in
Berlin Germany to the Australian Immigration Department I am refusing
your request under section 24A of the Freedom of Information Act 1982
as the document sought does not exist. That is, there has been no final
decision by Berlin Germany and negotiations with respect to your return
are continuing."

The letter referred
to by Ms Keenan as being the last final decision made in Warsaw Poland
is a letter dated 1 March 2002 from Mr Dariusz M. Chmief, Polish Consul,
of the Consulate General of Poland in Sydney, and was addressed to Mr
David Bottrill of Unauthorised Arrivals, DIMIA. The letter states as follows:

"With reference
to the above case discussed in your previous correspondence I wish to
advise you that the consulate has now received a formal administrative
Decision of the Voyvode (Governor) of Mazovia Province, competent
in ascertaining Polish citizenship with regard to persons born outside
the territory of Poland and never domiciled in Poland, in which the
Voyvode refuses to issue the applicant with a Certificate confirming
his Polish citizenship.

In view of the
documentation produced in this case, the Voyvode finds no grounds to
confirm that Mr XY has ever been entitled to Polish citizenship. Neither
of his parents can prove that they held Polish citizenship on the date
their son was born, and that Mr XY's father was recognised as a Polish
citizen when Poland regained Independence in 1918.

In view of the
above facts Mr XY cannot be recognised as a Polish citizen."

In the letter accompanying
these documents, the complainant's solicitor stated:

"You will
see that DIMIA appears to accept that the letter from Poland is final,
but it continues to maintain that negotiations with Germany are continuing,
notwithstanding the German Deportation Order dated 26 July 2000 previously
sent to you."

In light of the materials
provided by the complainant in response to the preliminary findings, I
formed the view that it was necessary to ask both the complainant and
the respondent to provide me with further submissions in relation to issues
raised by those documents.

7.
Responses to my Invitation for Further Submissions

DIMIA provided the
following response, dated 25 June 2002, to my invitation for further submissions:

"In relation
to the document that Mr XY claims is a "deportation order"
I can confirm that a copy of this document was received from Mr XY's
solicitor on 25 April 2002. The document has not been authenticated
and it does not appear to be accompanied by an official translation.
If genuine it appears not to take account of obligations Germany may
have to Mr XY on account of his birth in Germany and the German Citizenship
of all members of his immediate family. It also does not canvass further
obligations Germany may have that stem from the Convention on the Reduction
of Statelessness and the International Covenant on Civil and Political
Rights.

Mr XY is aware
that he faces imprisonment on his return to Germany and may have solicited
this document to support his argument that he cannot return to Germany.
Despite his strong ties to Germany it is not in his interest to challenge
the "deportation order". The document is of interest but has
had no impact in relation to DIMIA's on-going negotiations with the
German authorities.

In relation to
the document from the Polish Consulate dated 1 March 2002 I can confirm
that the Department received this document from the Polish Consulate.
This document led to the cessation of negotiations with Poland on Mr
XY's deportation to Poland."

The following response,
dated 1 July 2002, was provided by the complainant's solicitor to my invitation
for further submissions:

"Mr XY had
had some ongoing correspondence with the German authorities in relation
to whether he was still subject to possible charges in Germany. I understand
from Mr XY that there is a 10 year limitation period placed on the German
authorities in pursuing criminal charges, but that that period is automatically
extended during any period when the person is serving a sentence of
imprisonment following conviction for a crime. In about May or early
June 2000 and in response to a letter written by Mr XY, a reply was
received from the German Official Prosecutor (this is not the exact
title but Mr XY's best approximation) to the effect that this 10 year
limitation period expired on 11 June 2000. Unfortunately, Mr XY no longer
has this correspondence. I am instructed that it went missing when his
personal possessions had been removed from him and were under the charge
of DIMIA or the ACM after his transfer to the Perth Airport Immigration
Detention Centre.. …In any event, shortly after receiving the letter
from the German Official Prosecutor, Mr XY received the Deportation
Order (apparently emanating from a different German source). Mr XY denies
in any way that he requested or suggested the Deportation Order.

The Deportation
Order did not have any covering letter as such. There was an acknowledgement
document handed to Mr XY by the Albany Prison authorities , which he
was required to sign to say that he had received the Deportation Order
and which was retained by the prison authorities (Mr XY is not aware
whether the acknowledgement was for their use or for return to the German
authorities).

I am not in a position
to comment on the legal effect of the Deportation Order. It appears
to speak for itself in that as a matter of logic the German authorities
will have no interest in accepting back a non-citizen who is the subject
of a deportation order. However if there is any real doubt as to its
validity or effect, you will need to pursue this with the German authorities.

The Deportation
Order contains a provision advising as to the right to appeal within
one month of its receipt. This advice is contained in the first paragraph
on the last page of the Deportation Order.

Mr XY did not seek
to appeal the Deportation Order, he did not believe that any appeal
could be justified, or have any prospects of success and the German
authorities had previously made it very clear that quite apart from
this Deportation Order they had no intention of allowing him to return
to Germany."

8.
Article 9

As stated above,
Mr XY alleges that his continuing detention, and the indeterminate nature
of that detention whilst awaiting deportation, constitutes a breach of
article 9 of the ICCPR.

8.1
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. [6] 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). [7]

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. [8] In A v Australia [9]
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. They further
stated in Spakmo v Norway [10] that to comply
with article 9, an action "must not only be lawful, but also reasonable
and necessary in all the circumstances."

The Human Rights
Committee in Van Alphen v The Netherlands [11]
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."

Furthermore, the
jurisprudence of the Human Rights Committee has established that even
if the initial detention is not arbitrary, a subsequent period of detention
may become arbitrary; for example, when one has regard to the length of
the detention. [12]

8.2
Domestic case law

The central question
to which I must determine the answer is whether the complainant is being
subjected to arbitrary detention within the scope of article 9 of the
ICCPR, or, as referred to in the recent case of Luu v Minister for
Immigration and Multicultural Affairs
[2001] FCA 1136 ("Luu"),
whether he is in indeterminate detention. The Luu case concerned an application
by Mr Luu for orders of review under the Administrative Decisions (Judicial
Review) Act 1977
(Cth) of two decisions of the respondent Minister
relating to Mr Luu's continuing detention pursuant to section 253(9) of
the Migration Act. If a person is found to be in indeterminate detention,
then as Marshall J in the Luu case stated, [13]
"it can fairly readily be accepted that indeterminate detention would
usually breach" a number of articles of the ICCPR, in particular:

"Indeterminate
detention can be considered 'arbitrary' and therefore prohibited under
Art 9(1): See Van Alphen v The Netherlands UNHCR 305/88 at [5.4] where
it was held 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.
""
[14]

Marshall J considered
carefully the question of whether Mr Luu was in indeterminate detention
at the date on which the Minister had decided not to release Mr Luu and
not to revoke a deportation order issued against him. He stated as follows:

"In my opinion,
the effect of the decision of the Minister at 12 March 2001 was not
to place Mr Luu in indeterminate [detention] because the Minister was
able to give a reasonably specific approximation of when Mr Luu was
likely to be deported. Clearly, such an approximation must be supported
by evidence confirming its likelihood. If the evidence showed that the
Vietnamese government had refused to enter into negotiations or if negotiations
appeared to have stagnated, the Minister's approximation that an MOU
[Memorandum of Understanding] was likely to conclude would be unfounded
and his decision may well have had the effect of keeping Mr Luu in indeterminate
detention. However, in the circumstances, the evidence before the Minister
suggested that negotiations between Vietnam and Australia had progressed.
On this basis the Minister found it was likely that an MOU would be
concluded by the end of the year. I am in no position to dispute this
finding. As noted above I have not addressed whether a decision made
by the Minister prior to 12 March 2001 would have been a decision that
had the effect of keeping Mr Luu in indeterminate detention.

It follows that
as the Minister's decision at 12 March 2001 did not have the effect
of keeping Mr Luu in indeterminate detention, the decision did not contravene
the ICCPR in this regard." [15]

Although Mr Luu's
circumstances are similar to that of the complainant in the matter before
me, there is one crucial differentiating factor. In the case of Mr Luu,
there was a single country to which his deportation was sought, that country
being Vietnam. There were firm negotiations taking place between the Australian
and Vietnamese governments which involved the finalisation of a Memorandum
of Understanding between the two countries which would facilitate the
return of Vietnamese nationals to Vietnam. That situation is different
to that of Mr XY's circumstances, as there is no evidence in the matter
before me that negotiations between Australia and Poland or Germany have
reached a stage where the Minister is able to give a reasonably specific
approximation of when Mr XY is likely to be deported. In the case of Poland,
DIMIA have stated that negotiations with the Polish government regarding
Mr XY's deportation have ceased. In the case of Germany, at no stage have
DIMIA been able to indicate the precise content and nature of negotiations
with the German government, nor give any indication as to when these negotiations
may have an end point. This difference in factual circumstances is crucial
to the potential application of the decision in Luu to Mr XY's situation,
as the impending conclusion of the MOU was a fundamental element in Marshall
J's reasoning that Mr Luu's detention was not arbitrary and thus not a
breach of article 9 of the ICCPR. [16]

The circumstances
of the applicant in Perez v Minister for Immigration and Multicultural
Affairs
[1999] FCA 1342 are, however, analogous to that of the complainant
in this matter. In that case, DIMIA was unable to secure a country to
which Mr Perez could be deported. 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
principal 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 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 having
a legal duty to revoke the order might arise…. Nevertheless, delay
on its own may be a less alarming matter than the likelihood that a
practical consequence of the making of the 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)."
[17]

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." [18]

He further commented
that "some delay in effectuating a deportation order may be unavoidable.
But indeterminate administrative detention is a very different thing".
[19] 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 effectuated within a reasonable time". [20]
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 expectations, based on past dealings with
a proposed deportee's country of nationality, about reasonably prompt
effectuation of the deportation". [21] 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". [22] Further, subsection (9)
is an "active source of the Minister's power to prevent injustice".
[23] The likelihood of indeterminate detention is an
important matter affecting the merits of a decision to make a deportation
order. [24]

The Federal Court
also considered the issue of indeterminate detention in Vo v Minister
for Immigration and Multicultural Affairs
[1999] FCA 1845. Mr Vo was
a Vietnamese national, who was also being held in immigration detention
pending the finalisation of the MOU with Vietnam. Tamberlin J considered
a challenge to decisions to continue to detain Mr Vo under section 253
of the Migration Act. His Honour took the view that the reasonableness
of Minister's decision not to release Mr Vo was supported by the evidence
presented to him at the hearing about the ongoing negotiations with the
Vietnamese Government which "make(s) 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 Full 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 Perez v Minister
for Immigration and Multicultural Affairs
[2002] FCA 450 Allsop J
considered whether there is a time limit on the Minister's power to detain
for the purposes of deportation under sections 200 and 253(8) of the Migration
Act. Allsop J (at [104 - [112]) regarded himself as bound to apply the
decision of the Full Federal court in Vo.

These issues were
most recently raised in Al Masri v Minister for Immigration & Multicultural
& Indigenous Affairs
[25]. Mr Al Masri was detained
pursuant to a different regime to that of Mr XY under the Migration Act
(being Division 7 of Part 2) and in particular, was detained pursuant
to section 196(1)(a), which regulates the detention of unlawful non-citizens
awaiting deportation. The central issue in Al Masri was whether
the applicant's lawful detention under section 196 had become unlawful
because it was no longer authorised by the Act, taking into account the
"purposive and temporal limitations on the power to detain in sections
196(1)(a) and 198". [26] Merkel stated [27]
that these sections are to be construed as authorising detention only
for so long as:

"* the Minister
is taking all reasonable steps to secure the removal from Australia
of a removee as soon as is reasonably practicable;

* the removal of
the removee from Australia is "reasonably practicable", in
the sense that there must be a real likelihood or prospect of removal
in the reasonably foreseeable future.

If a court is satisfied
that the Minister is not taking "all reasonable steps" or
that removal is "not reasonably practicable" the implicit
limitations on the detention power will not have been complied with
or met and continued detention of the removee will no longer be authorised
by the Act."

He further stated:

"The situation
is that each of the countries to which the Minister seeks to remove
the applicant: Israel, Jordan, Egypt and Syria, have refused to accede
to the Department's requests for permission for the applicant's entry.
Notwithstanding continuing communications between the Department and
Israeli officials there is no indication that there is a real prospect
or likelihood of Israel agreeing to alter its unequivocal refusal to
permit the applicant to enter Israel. In all the circumstances I am
prepared to more readily and confidently infer that at the present time
there is no real prospect or likelihood of the Minister being able to
remove the applicant from Australia in the reasonably foreseeable future.
Accordingly, I have concluded that the Minister has failed to discharge
the burden imposed upon him to prove that the continued detention of
the applicant is lawful. Consequently, the applicant's continued detention
is unlawful."

Merkel J ordered
the release of Mr Al Masri on the basis that his continued detention was
unlawful. [28]

9.
Findings

In considering Mr
XY's complaint that his detention breaches article 9 of the ICCPR, I must
first determine whether his detention can be viewed as arbitrary or, as
Marshall J in Luu referred to it, whether his detention can be
viewed as "indeterminate". To make such a determination, according
to Marshall J's reasoning in Luu, I must consider the following
questions:

  • can DIMIA give
    a "reasonably specific approximation" of when Mr XY is likely
    to be deported?
  • if such an approximation
    can be given, is it supported by evidence confirming its likelihood?
  • does the evidence
    show that negotiations for Mr XY's deportation "appear to have
    stagnated", or that the relevant governments have "refused
    to enter into" negotiations"?

The evidence before
me indicates that some time during 2001, the focus of DIMIA's attempts
to negotiate Mr XY's deportation were on Germany rather than Poland, and
I came to the preliminary view that DIMIA appeared to have abandoned its
efforts to have the complainant removed to Poland. This view has since
been confirmed in a letter from DIMIA to the Commission dated 25 June
2002 in which it was stated that negotiations with the Polish government
to secure Mr XY's deportation to Poland had ceased. It is therefore necessary
for me to consider the negotiations for the deportation of Mr XY to Germany.

In doing so, I note
that in DIMIA's initial response to the complaint, dated 13 December 2000,
DIMIA indicated that the "(r)emoval of Mr XY is now dependant on
the actions of the Polish authorities in issuing a travel document or
evidence of authority to enter and reside in Poland." DIMIA also
stated that "(g)iven the advanced state of dealings with Poland on
this matter it is not intended to release (sic) Mr XY before his removal
from Australia". DIMIA continue "(i)n respect of the complainant,
we believe that it is probable that the Government of Poland will recognise
its obligations." From the evidence before me, it appears that most
of DIMIA's negotiations to secure Mr XY's deportation were, at the time
of issue of Mr XY's deportation order in 1997 and until at least June
2001, concentrated on securing his deportation to Poland. The correspondence
of 21 February 2002 revealed that at some stage between 12 February 2001,
and November 2001, DIMIA had shifted the focus of its negotiations regarding
Mr XY's deportation to the German government.

A "reasonably
specific approximation" of when Mr XY is likely to be deported?

Letters from DIMIA
to the Commission dated 23 April 2002 and 25 June 2002 refer to "on-going"
negotiations with the German government. However, the Commission has not
been provided with any form of approximation as to when Mr XY's deportation
to Germany may occur.

Is there any
evidence confirming the likelihood of deportation?

In DIMIA's initial
response to Mr XY's complaint dated 13 December 2000 the following was
stated:

"Advice from
the German Embassy on 2 June 2000 was that there was "no legal
entitlement to issue any travel document for Mr XY" as he had "lost
his status as a "homeless alien"."

The only evidence
I have been provided with regarding negotiations for Mr XY's possible
deportation to Germany are the emails between DIMIA officers in Berlin
and Canberra referred to above in 2.8. Those emails do not provide me
with any evidence that the German government had at any stage entered
into negotiations with DIMIA. Rather, they detail attempts by DIMIA officers
to contact German authorities to commence negotiations. Letters from DIMIA
to the Commission dated 23 April 2002 and 25 June 2002 refer to "on-going"
negotiations with the German government, and do not make any submissions
on the likelihood of Mr XY's deportation to Germany.

Mention was also
made in those letters of possible obligations Germany may have under the
Convention on the Reduction of Statelessness and the ICCPR. However, DIMIA
has not referred me to any particular articles of the Convention or the
ICCPR and there is no evidence that these contentions have been made to
German authorities. In my view, there is no evidence to confirm the likelihood
of Mr XY's deportation to Germany.

Mention should also
be made of the "Deportation Order" received by Mr XY from German
authorities. DIMIA appears to have some reservations about the authenticity
of the document, and have stated that it has no impact on their negotiations
with the German authorities. As there is a dispute about the effect that
the document has, I have not placed any reliance on the document in my
findings. However, I note that if the document is genuine, it could be
regarded as further evidence that there is little likelihood of the complainant
being deported to Germany.

Do negotiations
"appear to have stagnated", or do the relevant governments appear
to have "refused to enter into" negotiations?

Butterworths Australian
Legal Dictionary defines "negotiation" as "generally,
mutual discussion and arrangement of the terms of a transaction or agreement
."
There is a mutual element to the term, and thus efforts made by DIMIA
to secure the complainant's deportation must go beyond mere enquiries
and into mutual discussion of the terms of an agreement to be classified
as negotiations. I have not been provided with any evidence to indicate
that this stage has been reached. The emails referred to above show an
attempt by DIMIA officials in Berlin to contact German authorities in
order to commence negotiations. I accept that DIMIA have made attempts
in good faith (and it is likely they have made numerous attempts) to engage
the German authorities in negotiations. However I have not been provided
with any evidence to show that those attempts and enquiries have led to
a result that allows me to make a finding that negotiations have ensued
from such enquiries.

However, even if
I were to be satisfied that negotiations have taken place, the evidence
before me suggests that, at best, negotiations between DIMIA and the German
government have stagnated. There is no evidence at all before me to suggest
that negotiations have progressed since enquiries were initiated approximately
five years ago. In a letter to the Commission dated 23 April 2002, DIMIA
stated that, "the Department is continuing negotiations with Germany".
No details of these negotiations or their status was given, however DIMIA
referred to possible obligations Germany may have under the Convention
on the Reduction of Statelessness and the European Convention on Nationality
which were being "examined and perused" by their Berlin office.
In a letter dated 25 June 2002, DIMIA again stated that they had "on-going"
negotiations with the German authorities. However, I have no evidence
before me to suggest that the German government has ever given any indication
that they will enter into any negotiations to consider Mr XY's deportation
to Germany.

I thus find that
negotiations with Germany, if ever entered into by the German government,
have stagnated, and there is no evidence to confirm the likelihood of
Mr XY's deportation to that country. I am therefore of the view that Mr
XY's detention has been indeterminate since some time in 2001, and most
certainly was indeterminate by March 2002, when the Polish government
confirmed that it would not accept Mr XY.

As I have found that
Mr XY's detention is indeterminate, I must now determine whether it can
be viewed as "arbitrary", and thus in breach of article 9 of
the ICCPR. As discussed in 9.2, Marshall J noted in Luu that

"indeterminate
detention can be considered 'arbitrary' and therefore prohibited under
Art 9(1): See Van Alphen v The Netherlands UNHCR 305/88 at [5.4]
where it was held 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
." [29]

It is my view that
Mr XY's continuing detention is inappropriate, unjust, and in particular,
lacking predictability. I therefore find that Mr XY's continued detention
is arbitrary, and is in breach of article 9 of the ICCPR.

Because of the findings
that I have made about the arbitrary nature of Mr XY's detention, it is
not necessary for me, in the circumstances of this particular case, to
consider the impact of the Al-Masri decision (which dealt with
different provisions of the Migration Act) to this matter.

10. Submissions
on Recommendations

10.1
Introduction

Section 29(2)(b)
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. Section 29(2)(c) of the HREOC Act
states that I may also include recommendations for either or both of the
following:

(i) the payment of
compensation to, or in respect of, a person who has suffered loss or damage
as a result of the act or practice;

(ii) the taking of
other action to remedy or reduce loss or damage suffered by a person as
a result of the act or practice…

In the process of
finalising this inquiry, it came to my attention that the parties had
not made submissions on the issues of:

  • what recommendations
    (if any) I should make in the event I affirmed some or all of my preliminary
    findings; and
  • to the extent
    that any such recommendations included a recommendation for the payment
    of compensation, how such compensation should be quantified.

Therefore I wrote
to the parties, on 29 July 2002, seeking submissions on the above issues.
The complainant's submissions were provided to me in accordance with the
timetable.

The respondent's
submissions were originally due on 26 August 2002. The respondent sought
and was granted an extension for those submissions such that they were
due on 6 September 2002. The submissions were not received by 6 September
2002. On 10 September 2002, the Department was advised by letter that
the Commission intended to finalise this inquiry, regardless of whether
those submissions were provided. On 18 September 2002, I received a letter
from the Department stating that as they are of the view that there has
been no breach of article 9 in this matter, submissions on possible recommendations
were not necessary.

10.2
Submissions made on a possible recommendation for Mr XY's release

In a letter dated
12 August 2002, the following submissions were made on behalf Mr XY in
relation to a possible recommendation for his release:

"In relation
to the Commissioner's recommendation, I submit that the Minister clearly
has the power under s253 (9) of the Migration Act, which section concerns
the detention of deportees:

"In spite
of anything else in this section, the Minister or the Secretary may
at any time order the release (either unconditionally or subject to
specified conditions) of a person who is detention under this section."

Clearly therefore
Mr XY having completed his prison sentence and there being a continuing
breach of the Human Rights and Equal Opportunities Act 1986,
the continuing breach can be easily remedied simply by releasing Mr
XY on reasonable reporting conditions. This does not in anyway prejudice
the DlMA position that if deportation becomes a practical reality at
some time in the future, the Deportation Order can be enforced at that
time. The first recommendation should therefore be that the Mr XY be
released immediately."

10.3
Submissions made on a possible recommendation on financial compensation

In the letter dated
12 August 2002, submissions were also made on behalf of Mr XY in relation
to a possible recommendation for financial compensation:

"He (Mr XY)
has continued in immigration detention for a full 2 years simply because
and only by reason of the deportation order. He should be compensated
for this deprivation of liberty for at least this 2 year period. Loss
of liberty is a grievous penalty to anyone, especially when it can not
be justified. This is not a case where it is the foreign country which
has been difficult or caused the delays, the documents show the delays
are all on the Department's part. There are no repeated requests for
a response which go unanswered. The Department could easily have made
its enquiries in 1996 and early 1997 (sic) discovered that Mr XY could
not be deported and not issued a deportation order. Even then between
1997 and 2000 no reasonable concerted attempt was made to obtain a definite
decision from any country which might possibly accept Mr XY and in reality
there were only 2 possible countries namely Germany and Poland. I therefore
submit that it is appropriate to recommend compensation. The Commissioner
may well consider that this is a case that if a civil claim could have
been brought (it cannot because of the provisions of the Migration Act),
aggravated damages might properly be awarded because of the deliberate
acts of the Department."

The submissions then
went on to cite a number of cases where damages had been awarded for false
imprisonment, [30] wrongful arrest [31]
and incorrect calculation of sentence. [32] The damages
awarded in these cases include compensatory, exemplary and aggravated
damages. It was further submitted:

"Mr XY has
been held for at least 2 years totally unnecessarily. In those circumstances,
in my submission, the compensation for 2 years loss of liberty should
be in excess of $100,000. The recommended compensation should be significantly
higher if the Commissioner accepts that the Department has behaved in
a matter which, in a civil jurisdiction, would have justified an award
of aggravated or exemplary damages."

11.
Recommendations

11.1
Recommendation for the complainant's release

As I have found that
Mr XY's continued detention is arbitrary, I recommend that the Minster
exercise his discretion under s253(9) of the Migration Act and release
Mr XY from immigration until his deportation is secured.

11.2
Recommendation for financial compensation

So far as is possible
by a recommendation for compensation, the object should be to place the
injured party in the same position as if the wrong or wrongs had not occurred.
[33] Compensation for human rights violations will usually
be assessed in the same way as damages for torts, although this approach
may not be appropriate in all cases. [34] In my view,
the tort of false imprisonment is the most analagous to this matter, and
that any recommendation for compensation should be informed by the principles
employed by the courts in cases involving that tort. [35]

The tort of false
imprisonment is actionable per se, that is, without proof of damage [36]
as the right to liberty is "the most elementary and important of
all common law rights". [37] Damages are awarded
in the first instance not as compensation for loss but as a non-compensatory
means of signifying the infringement of a right. [38]
The principal heads of damage for a tort of this nature are injury to
liberty (the loss of time considered primarily from a non-pecuniary standpoint)
and injury to feelings (the indignity, mental suffering, disgrace and
humiliation, with any attendant loss of social status). [39]
Damages may also be aggravated by the circumstances of a particular case,
[40] for example, where a lack of bona fides or improper
or unjustifiable conduct on the part of a respondent is established. [41]

On the basis of the
material before me, I am of the view that an appropriate amount of compensation
for Mr XY for the violation of his rights under article 9(1) of the ICCPR
is $45,000. In arriving at that figure, I have had regard to the following:

  • the length of
    time that the complainant has been detained without a real prospect
    or likelihood of deportation to Poland or Germany (as stated above,
    since some time in 2001 and certainly, in relation to Poland, by March
    2002)
  • that part of this
    time was spent in a maximum security prison [42]
  • the mental suffering
    caused by the length of detention awaiting deportation

I am not of the view
that the circumstances of this case warrant an award of aggravated damages
as suggested by the complainant.

I therefore recommend
that the respondent pay to Mr XY the amount of $45,000 by way of compensation.

12.
Actions Taken by the Respondent as a Result of 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, to the knowledge of the Commission, the
respondent has taken or is taking any action as a result of its findings
and recommendations.
On 23 September 2002, the Commission wrote to the Department 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
8 October 2002, Mr E V Killesteyn, on behalf of the Department, provided
the Department's comments in relation to those findings and recommendations.
Mr Killesteyn stated that as the Department did not accept the findings
made in my notice of 23 September 2002, the Department did not propose
to take any action on the basis of my findings or recommendations.

 


APPENDIX
1

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).


1.
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 1.

2.
The Commission recently examined the issue of indeterminate detention
and the scope of article 9 in HRC Report No.13, Report of an inquiry
into a complaint of acts or practices inconsistent with or contrary to
human rights
(also available at www.humanrights.gov.au/human_rights/index.html),
tabled in the House of Representatives on 26 June 2001.

3.
Secretary, Department of Defence v HREOC, Burgess &Ors (1997)
78 FCR 208 per Branson J

4.
ibid

5.
Under Part 2, Division 9 of the Migration Act

6.
Human Rights Committee, CCPR General Comment 8, 30/7/1982, para 1. See
also discussion in Human Rights and Equal Opportunity Commission Those
who've come across the seas: detention of unauthorised arrivals
, 1998
at 46.

7.
See, for example, Communication No 8/1977, 3 April 1980; Communication
No 277/1988, 4 July 1990; Communication No 25/1978, 26 July 1982.

8.
Manfred Nowak UN Covenant on Civil and Political Rights CCPR Commentary
(Engel: 1993) at 172.

9.
Communication No 560/1993, 30 April 1997.

10.
Communication No 631/1995, 11 November 1999

11.
Communication No560/1993, 23 July 1998.

12.
Spakmo v Norway
, Communication No. 631/1995 11 November 1999.

13.
At [65].

14.
Ibid.

15.
At [72] and [73].

16.
It should be noted that the decision of Marshall J was appealed by Mr
Luu. The Full Court of the Federal Court heard the appeal on 12 November
2001, and their decision is still reserved as at the date of this report.

17.
at [12] - [15]

18.
at [17]

19.
at [23]

20.
at [24]

21.
at [24]

22.
at [25]

23.
at [25]

24.
The position of Mr Perez was further considered by Allsop J in Perez
v Minister for Immigration and Multicultural Affairs
[2002] FCA 450
(12 April 2002). This matter involved an application by Mr Perez under
the Administrative Decisions (Judicial Review) Act 1977 (Cth) for
review of a decision made by the Department not to release Mr Perez. Allsop
J remitted the matter to the Department for reconsideration, as the Department
did not, inter alia, "consider the matter from the position that
no one could say when he might be able to be returned to Cuba". In
his view, the fact that the time of Mr Perez's return was, at best, at
some indefinite point in the future, should have been a crucial consideration
in the Department's considerations as to whether Mr Perez's deportation
order should be revoked, or he should be released.

25.
[2002] FCA 1009 (15 August 2002)

26.
at [38]

27.
at [38] - [39]

28.
It should be noted that an appeal in this matter was heard by the Full
Court of the Federal Court on 2 October 2002.

29.
at [65]

30.
Commonwealth v Graves 95040600 (NSW Court of Appeal) (reference
provided by complainant)

31.
Macdonald v Coles Myer (1995) CCH Torts Reports at 81-361 (reference
provided by complainant)

32.
R v Governor of Brockhill Prison ex parte Evans No.2 (1998) 4 All
ER 993

33.
Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217 per Lockhart
J at 239; Commonwealth of Australia v Human Rights and Equal Opportunity
Commission
[2000] FCA 1150 (17 August 2000), per Wilcox J at [55].

34.
Sheiban
, above n 33, per Lockhart J at 239.

35.
See Walter Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; Spautz
v Butterworth & Anor
(93040240) 12 December 1996; Sadler &
State of Victoria v Madigan
[1998] VSCA 53; Cowell v Corrective
Services Commission
(1988) 13 NSWLR 714.

36.
RP Balkin and JLR Davis, Law of Torts (2nd ed, 1996), at page 61.

37.
Trobridge v Hardy (1955) 94 CLR 147, per Fullagar J at 152; Murray
v Ministry of Defence
[1988] 1 WLR 692 at 701 - 702; Re Bolton;
Ex parte Beane
(1987) 162 CLR 514, per Brennan J at 523; and Sadler
& State of Victoria v Madigan
[1998] VSCA 53 (1 October 1998)
at [51].

38.
Ibid.

39.
Cassell & Co Ltd v Broome (1972) AC 1027 at 1124; Spautz
v Butterworth & Anor
(1996) 41 NSWLR 1 per Clarke JA; Vignoli
v Sydney Harbour Casino
[1999] NSWSC 113 (22 November 1999], at [87];
McGregor on Damages (5th ed, 1988), at para 1619.

40.
Balkin and Davis, above n 85, at 61.

41.
Spautz, above n 35; Sheiban, above n 33, per Lockhart J
at 239-240.

42.
I note that Mr XY was transferred form Albany Regional Prison to the Perth
Immigration Centre in approximately November 2001.

Last updated 12 December
2002Last
updated 12 December 2002.