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HREOC Report No. 27

Report of an inquiry into a complaint by
Ms KJ concerning events at Woomera
Immigration Reception and Processing Centre between 29-30 March 2002

HREOC Report No. 27

© Commonwealth of Australia 2004.

Copying is permissible with acknowledgment of the authorship of the
Human Rights and Equal Opportunity Commission, Sydney, January 2004.

The Hon Philip Ruddock MP
Attorney General
House of Representatives
Parliament House
CANBERRA ACT 2600

Dear Attorney

Pursuant to section 11(1)(f)(ii) of the Human Rights and Equal Opportunity
Commission Act 1986
(Cth), I attach a report of my inquiry into a
complaint made by Ms KJ on behalf of herself and her son MJ. I have found
there to have been an act done on behalf of the Commonwealth which was
inconsistent with and contrary to the human rights of MJ.

Yours sincerely,

Stephen Roder
Delegate of the President

22 January 2004


Table of Contents

  1. Introduction
  2. Jurisdiction
  3. The conduct of the inquiry
  4. Standard of proof and assessment of the evidence
  5. Factual background to the complaint
  6. The complaint and the complainant's evidence
  7. Evidence of ACM officers
  8. Evidence regarding policies, procedures and training
  9. Other evidence
  10. General observations in relation to witnesses and
    evidence
  11. Factual findings on the use of tear gas and alleged
    assault with a baton
  12. Was there an act inconsistent with or contrary to any
    human right?
    1. Was there an 'act or practice'?
    2. Inconsistency with human rights
  13. Recommendations
  14. Action by the Department and ACM in response to the
    findings and recommendations
    1. Action by ACM in response to the findings and recommendations
    2. Action by the Department in response to the findings
      and recommendations

1. Introduction

This Report relates to a complaint made by Ms KJ [1]
under the Human Rights and Equal Opportunity Commission Act 1986
(Cth) ('the HREOC Act') to the Human Rights and Equal Opportunity Commission
('the Commission'). Ms KJ complains of acts inconsistent with or contrary
to her human rights and the human rights of her son, MJ. Those acts are
alleged to have occurred in the context of riots which took place at the
Woomera Immigration Reception and Processing Centre ('the WIRPC') between
29-30 March 2002.

During those riots, tear gas [2] and
batons were used by officers of Australasian Correctional Management Pty
Ltd ('ACM'), the provider of detention services on behalf of the Commonwealth
at the WIRPC. The relevant department of the Commonwealth is the Department
of Immigration and Multicultural and Indigenous Affairs ('the Department').

For the reasons set out below, I have found that:

  • MJ was assaulted with a baton by an ACM officer; and
  • that act was contrary to MJ's human rights.

Pursuant to s 29(2) of the HREOC Act I have recommended that the Department
apologise, on behalf of the Commonwealth, for the breach [3]
of MJ's human rights.

I also recommended that ACM conduct a full and thorough investigation
into the assault of MJ. The responses of the Department and ACM to these
recommendations are outlined at the end of this report.

I have not found there to have been an act or practice inconsistent with,
or contrary to Ms KJ's human rights. [4]

2. Jurisdiction

It is a function of the Commission to inquire into acts or practices
done by, or on behalf of, the Commonwealth which may be inconsistent with
or contrary to any human right; ss 3 and 11(1)(f) of the HREOC Act. The
'human rights' relevant to the issues under inquiry in this matter are
the rights and freedoms contained in the International Covenant on
Civil and Political Rights
('the ICCPR') and the Convention on
the Rights of the Child
('the CRC'): s 3 of the HREOC Act.

A more detailed analysis of the Commission's jurisdiction is set out
at Appendix A of this report.

I am required by s 11(1)(f) of the HREOC Act to consider the appropriateness
of conciliation as a means of resolving this complaint. I have decided
that this is not an appropriate case in which to endeavour to effect settlement
of the matters the subject of this complaint. The parties to the matter
have not expressed any desire to settle the matter, although this was
raised with both the Department and the complainant. The factual disputes
that have arisen significantly limit the scope for agreement which might
form the basis for any settlement.

3. The conduct of the inquiry

Ms KJ initiated this complaint by letter dated 10 July 2002. She provided
a further statement to the Commission, signed on 9 August 2002, which
included additional details.

A response to the complaint was sought from the Department on 30 August
2002. The response was received on 29 October 2002. After further investigation,
the then President of the Commission, Professor Alice Tay ('the President'),
formed the view that oral evidence should be taken to resolve the matter
and she advised Ms KJ and the Department of this on 15 March 2003.

On 3 April 2003 the President delegated her powers to conduct the inquiry
to me.

I then sought further information and documents relevant to the inquiry
from the Department by way of notices issued under s 21(1) of the HREOC
Act on 11 April 2003, 29 May 2003 and 24 June 2003. This material included
incident reports, officer reports, ACM policies, operation orders and
medical records.

On 20 May 2003, an officer of the Commission advised ACM of the proceedings
and it was invited to participate in them. The related corporate entity
Australian Correctional Services Pty Ltd ('ACS') was also represented
during the proceedings by the same legal representatives. I shall refer
to ACM and ACS collectively as 'ACM'.

Evidence in the form of signed statements [5]
from witnesses was received by me. Some of these statements were taken
by counsel assisting the Inquiry and others were provided by ACM's legal
representatives. In addition, a number of facts were agreed upon by the
parties.

A public hearing was held in Adelaide on 9 and 10 July 2003. Ms KJ appeared
at the hearing in person. Her first language is Farsi and an interpreter
was present throughout the proceedings to assist where necessary, but
Ms KJ requested that the hearing be conducted in English to the greatest
extent possible. While Ms KJ was largely able to make herself understood
in English, the interpreter was called upon to assist from time-to-time.
MJ did not give evidence. I did not think it appropriate to serve a notice
on him requiring him to do so.

The Department and ACM were represented at the hearing respectively by
Mr Michael Evans of counsel and Mr Ian Deane of counsel. Mr Jonathon Hunyor
appeared as counsel assisting the Inquiry. I heard evidence from Ms KJ,
who was questioned by counsel assisting and by counsel for ACM and the
Department. I also heard evidence from a number of witnesses who had been
employed by ACM at the time the subject of the complaint. Those witnesses
were questioned by counsel for the parties, counsel assisting, and Ms
KJ. I administered an oath to each witness who gave oral evidence.

It was agreed by all parties at the public hearing that at the conclusion
of the oral evidence a further notice under s 21 be issued to ACM. That
notice, seeking further information and documents, was issued on 11 July
2003. The material sought was provided on 1 August 2003. Supplementary
statements from witnesses were also provided by ACM in relation to the
issues the subject of that notice.

An issue arose at the public hearing as to whether or not I was required,
by the terms of s 27 of the HREOC Act or by the requirements of natural
justice, to inform the parties of my tentative views in the event that,
having received all of the evidence in this matter, those views were to
the effect that there had been a breach of the human rights of Ms KJ and/or
MJ. By letter dated 4 September 2003 I invited submissions from the Department
and ACM on this point. I received submissions from the Department dated
18 September 2003 which argued that I should inform the parties of my
tentative views and invite submissions in response. I decided that in
all of the circumstances of the case, particularly given the terms of
a letter sent by the President to the parties on 15 March 2003, it was
appropriate to accede to that argument and accordingly on 3 October 2003
I provided the parties with a document setting out my tentative views,
and offered an opportunity to put forward any further evidence by 26 September
2003.

Written submissions were provided by counsel assisting on 17 October
2003, and the Department and ACM on 29 October 2003. I then heard oral
submissions at a further public hearing on 31 October 2003 in Adelaide.

In addition to its written submissions, ACM sought to provide further
evidence in the form of information provided by the Bureau of Meteorology
and three statutory declarations which related to issues which had arisen
in the course of the inquiry. This material was provided on 29 October
2003. Counsel assisting and Ms KJ argued that I ought not to accept that
material. On 17 November 2003 I received - at my request - a further written
submission from ACM's solicitors relating to that material. Although I
do not consider the explanation for the delay in providing the material
to be satisfactory, I have decided that I should consider the material
in reaching my decision.

I have had regard to all of the oral evidence I heard. I have also had
regard to the evidence set out in Appendix B to this report in deciding
this complaint. At the request of ACM I made a direction during the hearing
in July that the names of ACM Officers involved in the case not be published
to protect their privacy. I have accordingly identified those officers
only by their position.

4. Standard of proof and assessment of the evidence

In making my findings, I have applied the civil standard of proof, namely
the balance of probabilities. I have assessed the evidence in light of
the well-established principle set out by Dixon J in Briginshaw v Briginshaw
(1938) 60 CLR 266, in which his Honour said (at 362):

[R]easonable satisfaction is not a state of mind that is attained
or established independently of the nature and consequence of the fact
or facts to be proved. The seriousness of an allegation made, the inherent
unlikelihood of an occurrence of a given description, or the gravity of
the consequences flowing from a particular finding are considerations
which must affect the answer to the question whether the issue has been
proved to the reasonable satisfaction of the tribunal. In such matters,
'reasonable satisfaction' should not be produced by inexact proofs, indefinite
testimony, or indirect inferences.

I regard the allegations made in this matter to be serious ones and recognise,
in particular, that adverse findings may impact upon the Department, ACM
and their staff. I have taken particular care in assessing the evidence
before reaching my findings.

5. Factual background to the complaint

Many of the background facts to the events which formed the subject of
this complaint were not in dispute and I have made the following findings.

On 29-30 March 2002, Ms KJ and her son, MJ, were detained at the WIRPC
in accordance with the Migration Act 1958 (Cth). They were accommodated
in November [6] Compound. MJ was seven
years old. There were 43 other children also detained in the WIRPC at
that time.

On the evening of 29 March 2002, there was a riot at the WIRPC. At about
1800 hours a group of 200-250 protesters conducted a protest outside the
WIRPC, against the southern fence of the centre. Detainees in November
and Mike Compounds breached the inner perimeter chain wire fence and entered
what was known as the 'sterile zone' between the internal perimeter fence
and the external palisade fence.

Ms KJ and MJ were amongst the group of detainees who left November Compound
through the breach in the fence and entered the 'sterile zone'. They proceeded
through the 'sterile zone' to the area in which the protest was taking
place, against the southern fence of the centre, outside Oscar Compound.

As a result of the actions of protesters and some detainees, the external
palisade fence was breached and approximately 45 detainees escaped from
the WIRPC. Ms KJ and MJ did not escape, nor attempt to escape.

At approximately 1838 hours, officers of the SA Police and Australian
Protective Services outside the compound moved demonstrators away from
the fence. Officers of an ACM Centre Emergency Response Team ('CERT')
team entered the sterile zone and at approximately 1900 hours moved detainees
into Oscar Compound. Ms KJ and MJ entered Oscar Compound at this time.
They went into one of the demountable buildings near the southern fence
of the compound in which a detainee, A, [7]
who was known to Ms KJ, was accommodated. They spent a number of hours
between A's room and another demountable building located opposite it
which served as an activities room sometimes referred to in the evidence
as the 'TV room'.

After the detainees were moved from the sterile zone into Oscar Compound,
ACM officers entered all compounds with a view to conducting headcounts
and identification in order to identify the detainees who had escaped
from the centre. Some detainees were aggressively non-compliant and violent
toward ACM officers, causing the officers to move out of the compounds.
Further damage was caused by some detainees to the internal fences of
the WIRPC, resulting in a large number of breaches in the fences between
Oscar, November and Mike Compounds. Some detainees also damaged fixed
cameras within Oscar Compound. The breaches in the internal fences enabled
movement by detainees between the compounds.

Ms KJ and MJ were not involved in violence towards ACM officers and were
not involved in any damage to property. [8]

The ACM Centre Manager and the ACM Field Commander entered Oscar Compound
on several occasions to conduct a dialogue with detainees. Detainees were
asked to cooperate with a head count procedure to determine who had escaped
from the WIRPC, and cease disruptive behaviour. Despite this, some detainees
continued to cause damage to fences and behave in a violent and disruptive
manner.

CERT teams were deployed in the sterile zone between Oscar and November
Compounds and inside November Compound in an attempt to contain detainees
and prevent further breaches of the fences between the compounds. Some
detainees attacked members of CERT teams with weapons including pieces
of palisade fencing, rocks, bricks and poles.

At some stage in the evening Ms KJ went with her son to the Oscar Mess
hall to eat some food. Other detainees were present at this time and Ms
KJ decided to return to November Compound to collect some things with
a fellow detainee, B, who shared a room with Ms KJ and her son. MJ stayed
in the mess with B's husband and their child. Ms KJ and B passed through
a gap which had been made in the fence of Oscar Compound, through the
'sterile zone' into November Compound. Ms KJ was there for about 10 minutes
while she collected some clothes and some chocolate from her room. She
and B then returned to Oscar Compound through the 'sterile zone'. Ms KJ
stated in her evidence that she believed that this happened at about 2030
or 2130 hours. Ms KJ was not, however, certain of the time. [9]

As the evening developed, a decision was made by the ACM Centre Manager
in consultation with the Department's Business Manager, that it was necessary
to take control of Oscar Compound with a view to restoring order to the
WIRPC. The Centre Manager had formed the view that the situation in the
WIRPC was dangerous to detainees and staff.

At approximately 2332 hours, about 25 CERT officers entered Oscar Compound
at the instruction of the ACM Centre Manager, with the intention of taking
control of the compound. The CERT officers had shields and batons in their
hands and were wearing helmets and gas masks.

It is the events of the half-hour between 2330 on 29 March 2003 and 0000
hours on 30 March 2003 which are the focus of the present complaint.

6. The complaint and the complainant's evidence

When Ms KJ returned to Oscar Compound after her brief visit to November
Compound, she says that she and MJ spent the next few hours in the TV
room and A's room. She then noticed that there was something 'serious'
going on outside in the area of the volleyball court in Oscar Compound.
She could see that about 30 ACM guards had entered the compound in their
riot gear. They had batons, shields and wore gas masks. She also says
that there were about male 40 detainees present. All of those detainees
had something in their hands, such as chairs, rocks and iron sticks.

Ms KJ says that she discussed the situation with the other women and
children who were present and they decided they should do something to
prevent trouble between the ACM officers and the male detainees. Ms KJ
and the other women went outside and stood in a group next to the group
of male detainees. Ms KJ had MJ with her, and was standing behind him
with her arms around his neck and shoulders. The ACM officers were in
three lines facing the group of detainees. Ms KJ was of the view that
the presence of women and children may prevent trouble developing further
as the ACM officers would 'respect women and children' and would not engage
with the detainees while they were there. Ms KJ conceded that her main
concern was with the welfare of the detainees, rather than the ACM officers
who were present.

Ms KJ states that at this point there were two male detainees on the
roof of the Oscar Mess, threatening to set fire to themselves. The ACM
Field Commander, who had removed his gas mask, was talking with a male
detainee, C, who was acting as a representative of the group. They spoke
in English. At some stage, one or both of the detainees on the roof came
down and joined the group near the volleyball court.

Ms KJ says that the Field Commander approached the group of detainees
and told C to tell the women and children to go back to their rooms. Ms
KJ states that she responded (although she cannot remember whether she
did so in English or in Farsi through C who translated it for the Field
Commander): 'When you leave the Oscar Compound and stop this thing, we
go back to our accommodation'. Under questioning by Mr Evans, Ms KJ accepted
that she did not expect the ACM officers to leave the compound - she was
simply trying to calm the situation down for a few minutes. Her evidence
was that the meaning behind her words was: 'Please stop this because of
us'. Ms KJ accepted that she could have left the area at this point and
returned to A's room or the TV room. She chose to remain with the other
women and children.

Ms KJ says that at this point none of the detainees were trying to attack
the ACM officers. Ms KJ states that the Field Commander was very angry.
He returned to take up a position in the line of ACM officers and put
on his gas mask. Ms KJ then heard a hissing noise and felt two sprays
of tear gas on the right side of her face and one on the left side of
her face. She had no warning that tear gas was going to be used. Ms KJ
believed that the Field Commander was one of the people who had sprayed
tear gas as it came from the direction where she was watched him go, but
she conceded that she did not see the Field Commander actually spray the
tear gas. I record that I am satisfied that the Field Commander did not
spray tear gas. Ms KJ's memory was that about 5-7 minutes passed between
the time she went outside and the time that tear gas was used and that
during that period the Field Commander did not leave the area.

Ms KJ was blinded for a short time by the tear gas. When she opened her
eyes she realised that all of the detainees had left the area. She and
MJ had moved back to near B's room and Ms KJ turned to go into B's room.
She was still holding MJ in front of her. Ms KJ states that she then saw
a guard approach them with his baton raised. Ms KJ could not identify
the guard. She says that he or she was wearing a gas mask. The guard bent
over and swung his baton at MJ's legs. Ms KJ described in her evidence
jumping back, with MJ in front of her with his feet off the ground, to
avoid the baton. Ms KJ did not see the baton hit MJ and believed that
the baton had not hit him. Ms KJ says that the guard walked away and Ms
KJ and MJ returned to B's room.

Once in B's room, Ms KJ says that MJ was crying and holding his right
leg. He told his mother that he had been hit by the guard and showed her
a mark on the shin of his right leg where he said he had been hit. They
went to the TV room where there were other women and children. Ms KJ states
that everyone in the room was crying and had red faces and red eyes from
the tear gas. Ms KJ put some yoghurt on her face and on MJ's face to try
and relieve the effects of the tear gas. After about 10 minutes, an ACM
officer came to the TV room and told everyone to go to the Oscar Mess.

Ms KJ says that women, children and some men were assembled in the Oscar
Mess. Two ACM nurses attended and the group were given some information
about the effects of tear gas and shown how to wash themselves to minimise
its effects. There was a tap and basin in the room which some detainees
used to wash their faces, hands and the front of their hair. Ms KJ says
that she did not tell any of the ACM officers, including the nurses, about
the incident with the baton. Her evidence was that she did not feel that
she could trust the ACM officers and found the situation threatening.
She had not noticed MJ limping at this time. After a few hours spent in
the mess, Ms KJ and MJ returned to B's room and went to sleep.

Ms KJ states that on either Sunday 31 March or Monday 1 April 2002, she
noticed that MJ was limping. When Ms KJ asked him why he was limping,
he showed her a bruise on the inside of the knee of his left leg and also
a bruise on his right shin in the same place as she had seen the mark
on the night of 29-30 March. Ms KJ asked MJ why he had bruises on both
legs and MJ explained to his mother that the guard had hit him with a
baton diagonally across both legs, such that he was struck on both his
left knee and his right shin. Ms KJ says that she had not seen the bruises
on his legs previously as he had been wearing long pants because it was
cold.

On Tuesday 2 April 2002 Ms KJ and MJ spoke to Father Frank Brennan and
some other visitors to the WIRPC. She told them about the incidents of
29-30 March 2002 and MJ showed them his bruises.

Father Brennan provided a statement to the Commission confirming this
conversation. He states that he did not recall the exact words used, but
that Ms KJ described an assault on MJ by an ACM guard in which he had
been struck by a baton. He also states that he saw bruises on MJ which
appeared 'as a lay person, to be consistent with bruises caused by being
struck with a baton'. Father Brennan encouraged Ms KJ to take MJ to see
the doctor at the WIRPC and make a formal complaint in relation to the
incident.

Ms KJ took MJ to see the doctor on 3 April 2002. The ACM doctor recorded
the following: 'Mother claiming that her son was hit by belt on Saturday
30/3/02 by Security Officer. Medical Examination: - Bruise of few days
duration on medial aspect of left knee - abrasion + small bruise on R
shin.'

Ms KJ's evidence was that she did not use an interpreter in speaking
to the doctor. They spoke in English. While Ms KJ could not remember the
exact words she spoke to the doctor, she did not think that she had said
that her son was hit by a 'belt'. She stated that she has always been
clear that MJ was hit by a baton and once she was told the English word
for 'baton' (by Father Brennan) she remembered it, as the same word is
used in Farsi. [10] Ms KJ says that
she checked the doctor's report when it was given to her to see that it
recorded her son's injuries, but otherwise she did not read it.

The evidence of the ACM doctor, received by the Commission in a written
statement, is that he cannot recall what language was spoken when he saw
Ms KJ and MJ, but that he does not speak Farsi. He cannot recall any further
details of the bruises recorded in his notes, nor their probable cause,
but he states that they were not 'of sufficient seriousness as to require
an x-ray or treatment'.

The ACM doctor also cannot recall the exact words that were spoken to
him by Ms KJ. He states, however, that it is his practice to try and record
as accurately as possible the words spoken to him.

7. Evidence of ACM officers

The Commission heard and received written evidence from a number of people
who were ACM officers at the time of these alleged incidents. I will not
repeat the evidence of each witness in detail. While the evidence differed
in some of the details, it was broadly consistent in relation to the key
issues the subject of the inquiry.

The effect of the evidence from these officers was that following the
riots and detainee escapes between 1800 -1900 hours, there were numerous
incidents within the WIRPC during which fences were damaged and breached
by detainees. On a number of occasions ACM officers were attacked by detainees
who were armed with weapons including steel poles and palings from the
palisade fence. A photograph of some of the weapons seized from detainees
was provided to the Commission. Another photograph depicted the manner
in which some of the palisade palings had been altered, such that they
had a pointed tip and resembled a long spear.

The ACM evidence was to the following effect.

Numerous efforts were made throughout the evening by ACM officers to
conduct dialogue with detainees and resolve the ongoing unrest in the
centre. These were not successful. The view was taken by senior ACM staff,
and the Department's Business Manager at the centre, that given the continued
lack of cooperation and increasingly violent behaviour of detainees, it
was necessary to establish control within Oscar Compound to defuse the
situation and prevent it escalating out of control. Concerns were held
that there may be further escapes from the WIRPC and also that the safety
of detainees could be endangered by further rioting and damage to the
centre.

The evidence of the ACM Centre Manager was that he considered it necessary
to stabilise the situation in Oscar Compound to enable him to fulfil his
duty of care to children in the centre. He was concerned about the situation
escalating and endangering the wellbeing of all detainees, including children,
and was particularly concerned about the risk of fire.

On the orders of the ACM Centre Manager, a 25 member CERT team entered
Oscar Compound at approximately 2330 hours, headed by the ACM Field Commander.
There were two gas operators amongst this group. The Field Commander was
not a gas operator.

The Field Commander had discussions with the detainees who were present
in the area near the volleyball court in Oscar Compound. He communicated
with them in English, using detainees from amongst the group as interpreters.
Detainees were instructed to lay down their weapons and comply with a
head count procedure. They did not do so. The Field Commander left Oscar
Compound on at least two occasions to brief the ACM Centre Manager and
take further instructions as to how to proceed. He informed him that his
CERT team were outnumbered by the armed detainees. He also informed him
that there were women and children present in the compound.

The Field Commander was given the authority to use the minimum force
necessary to restore order to the compound. His evidence was that during
the period in which he was in Oscar Compound with the CERT team, he gave
a warning on at least three occasions that force, including chemical agents,
would be used if the detainees did not comply with his lawful directions.
The warning was read in English from a card which the Field Commander
had in his vest pocket. He believed that it was translated by the detainee
representatives with whom he was speaking, but he did not know into what
language it was translated.

On the last occasion that the Field commander gave the warning, he had
noticed that women and children were present. His evidence was that he
instructed the detainees in English that 'anyone who did not want to be
part of the demonstration which could involve the use of force should
return to their rooms or go to the Oscar Compound mess'. Some of the women
and children left the area at this point, while others remained. The evidence
of the Field Commander was that the male detainees were saying what he
believed to be a translation of his warning when an argument appeared
to break out amongst them.

The Field Commander's evidence was that at this point some detainees
climbed onto the roof and threatened to set fire to themselves. Shortly
thereafter the main group of detainees started advancing on the CERT team.
The Field Commander said in his evidence that he believed that the detainees
who were on the roof remained there at this time. Another officer stated
in his evidence that the 'situation on the roof was resolved' prior to
the use of tear gas. In his oral evidence that officer stated that he
did not see whether or not those detainees remained on the roof, but the
focus shifted from the situation on the roof and the Field Commander took
a place in the CERT team.

The Field Commander's evidence was that at this point threats were also
yelled by detainees such as 'we will kill you' and 'we will bash you'.
The Field Commander returned to his team and contacted the ACM Centre
Manager on his radio. He sought permission to deploy gas and that permission
was granted.

The evidence of the ACM Centre Manager was that the authorisation to
use tear gas was a decision made on the basis of his belief that potentially
lethal force was about to be used and that the use of tear gas would be
the quickest way to resolve that situation. He had also been informed
that women and children had been given the opportunity to leave the area,
that some had done so, and that those remaining had made a choice to remain.

The Field Commander estimated that the tear gas was deployed about three
minutes after the authorisation was given for its use. The consistent
evidence of the ACM officers present was that immediately prior to the
deployment of tear gas, they believed that they were in danger of serious
physical injury from the armed detainees.

After the deployment of tear gas the detainees dispersed and the CERT
officers detained a number of those involved in the rioting. The Field
Commander proceeded to an area in the north of the compound from where
he directed the other officers. From this position he could not see the
area in which Ms KJ says she was located at this point. None of the ACM
officers saw any assault by an ACM officer on MJ. All denied that they
had assaulted MJ.

Women, children and 'non-combatant' detainees were taken to the Oscar
Mess where they were given the opportunity to seek medical treatment for
any injuries and were provided with advice and assistance in relation
to the effects of tear gas. Cool running water was available for the washing
of hands and faces: an important step in decontamination after exposure
to tear gas.

One of the nurses from whom the Commission received written evidence
stated that she had personally checked the children for exposure to tear
gas. She observed that many children had been affected by exposure to
tear gas. The other nurse who was present, but did not physically check
the children, stated in her written evidence that she did not see anyone
with obvious effects of tear gas exposure. Nobody complained to the nurses
or other ACM officers present in the mess about an assault with a baton.

None of the incident reports prepared by ACM officers in relation to
the evening in question mention an assault on a child with a baton. The
evidence of the Field Commander was that he would have expected to have
been told about such an incident had it happened.

8. Evidence regarding policies, procedures and training

I made it clear to the parties to this matter that I regarded as relevant
the training of ACM officers and ACM policies and procedures which related
to riot situations and the use of force including tear gas. In particular,
in light of the human rights which had been identified and which are set
out below, it is relevant to determine the extent to which measures were
taken to protect children from harm and the considerations given to the
best interests of children in actions concerning them.

In the course of the inquiry I received evidence on ACM policies, procedures
and training by way of documents produced by the Department and ACM. Some
of these documents acknowledge the special needs of children. For example
ACM Policy 16.1 'Special Care Needs for Minors and Unaccompanied Minors'
states that its purpose is to ensure that 'the special needs of detainee
minors are clearly identified' and 'that unaccompanied minors [11]
are detained under conditions which protect them from harmful influences
and which take account of the needs of their particular age and their
gender'. The procedures set out in that document relate to the identification
and monitoring of the needs of children. It does not address how children
are to be protected in circumstances of riots and disturbances such as
occurred in the present case.

I was also provided with other policies which relate to the needs of
children but are not directly relevant to this inquiry, such as ACM Policy
16.2 'Childrens Protection Policy' which relates to notification of child
abuse and neglect.

Those policies which relate to the use of force and tear gas (ACM Policy
10.14 'Use of Force and Restraints' and 10.15 'Use of Tear Gas') provide
that the use of force is to be limited only to what is necessary 'for
the purpose of control and protection but with due regard for the personal
safety of Detention Officers and others' and that tear gas may only be
used 'as a last resort to protect life and limb'. They do not make express
provision for the use of force or tear gas in circumstances where children
are present.

Operation Order 'Operation Easterbreak' was provided to the Commission.
It was developed to deal with the possibility of disturbances over the
period that included 29-30 March 2002, with the stated mission of maintaining
the safety and security of the WIRPC. It sets out matters such as the
tasks that were to be undertaken in preparation for the weekend, the responsibilities
of officers and chains of command, logistical issues and communications.
It does not make mention of children or special measures that were to
be taken to protect them.

The training of ACM officers includes some consideration of the special
needs of children, who are covered in ACM induction training under the
topic 'cultural awareness and minors'. There is nothing, however, to suggest
that in training relating to the use of force generally or tear gas specifically,
particular consideration is given to the needs and vulnerabilities of
children. I note, for example, that the course materials provided in relation
to the emergency management course 'Emergency Response Training' make
no express mention of children.

I also received evidence from the ACM Centre Manager concerning both
the planning that took place for the disturbances which had been anticipated
on 29-30 March 2002 and the development of the operation order 'Easterbreak'
which was designed to supplement the existing operating procedures for
the WIRPC. Although, as noted above, the operation order does not make
specific mention of children, the evidence of the ACM Centre Manager was
that:

The planning of ACM's response to the demonstrations anticipated
to occur 27 March to 2 April 2002 was undertaken with an appreciation
that there was a possibility that children would be involved.

The ACM Centre Manager's evidence was that the 'overriding factor in
the development of the Order was to ensure that the safety and security
of all detainees and staff was maintained at all time, including children'.

9. Other evidence

ACM provided the Commission with written statements [12]
from Dr Bryan Todd and Senior Sergeant William Turner in relation to the
allegation that MJ had been struck with a baton. Both witnesses have experience
in the sorts of injuries which might be caused by baton strikes. These
statements were provided less than two days prior to final submissions
being heard. I was not asked by any party to have either witness called
for questioning.

Dr Todd states that he was provided with the written statement of the
ACM doctor who had seen MJ on 3 April 2002. Upon the basis of that statement,
Dr Todd expresses his opinion that it is 'very unlikely' that the injuries
to MJ were the result of a baton strike.

Mr Turner states that he was provided with the written statement of the
doctor as well as the complaint lodged by Ms KJ, which I presume to be
her letter of 10 July 2002 and her statement of 29 July 2002. Both of
these documents are brief and neither provides detail of the manner in
which Ms KJ says the injury was caused, such detail being provided in
her oral evidence. The substance of Mr Turner's opinion is that the injuries
reported by the examining doctor are inconsistent with a baton strike.

ACM also provided the Commission with a report from the Bureau of Meteorology
which gave the minimum temperature on 30 March 2002 as 14.4 degrees and
on 31 March 2002 as 12.2 degrees. I note also that the wind on those days
was gusting up to 41 and 26 km/h respectively.

It was submitted by ACM that these temperatures were inconsistent with
Ms KJ's evidence that it was 'very cold' at that time - evidence she gave
when explaining that her son had been wearing long pants and she had therefore
not observed the bruises on his legs until one or two days after the event.
I am not satisfied that such conditions could not properly be described
as 'very cold'. In any event, there is nothing improbable about a child
wearing long trousers in temperatures such as those recorded.

10. General observations in relation to witnesses
and evidence

I found Ms KJ to be an impressive witness. I formed the view from her
evidence and her demeanour that she was doing her best to truthfully recall
the events the subject of the complaint.

Ms KJ was able to provide significant detail in relation to the events
of the night, including the names of people involved in various incidents.
Ms KJ also volunteered information on a number of occasions which was
unhelpful to her claims and conceded that she may have been mistaken about
some matters and that things may have happened of which she was not aware.
Ms KJ's version of events contained many features which did not assist
Ms KJ in making her claims - such as the fact that she did not see the
baton actually hit her son.

Ms KJ was questioned by counsel for ACM and the Department and was, in
my view, clear and firm regarding key aspects of her evidence, while being
prepared to make concessions on matters about which she was unsure or
unaware. While counsel for ACM in particular drew my attention to matters
which he submitted amounted to inconsistencies in her evidence, I am satisfied
that none of these matters were such as to cast doubt on her truthfulness
or the general reliability of her evidence.

In particular, I do not find that Ms KJ was reconstructing events, as
was suggested by counsel for ACM, or attempting to make her story 'fit
in' with the documents which were produced to the inquiry. In my view,
while she sought to draw support for her version of events from such documents,
she was prepared to accept that the documents, if correct, suggested that
she was mistaken about some points. Ultimately, Ms KJ was prepared to
rely upon her own memory rather than accept what was contained in the
other material before the Commission. I note, for example, that for some
parts of her evidence Ms KJ chose to refer to a simple map which she had
drawn of the area in Oscar Compound where these events took place rather
than use the more detailed maps provided by ACM and the Department, as
she could not reconcile her memory of events with the maps produced.

Of course, this does not mean that I accept all of Ms KJ's evidence.
In parts, her memory of events is incomplete. On some significant issues,
her perception and/or memory of events was quite different from the perception
and/or memory of ACM officers involved. On such matters I have carefully
assessed the evidence before reaching my findings.

Understandably, given the time that has elapsed since the incidents,
the tense and 'disorderly' nature of the events in question and the fact
that different people will always see and perceive a given event differently,
there were differences in the accounts of the various witnesses. I find
that the other witnesses who gave evidence to the Commission were also
truthful and doing their best to recall the events the subject of the
inquiry and assist the Commission.

Ultimately there was much common ground in the evidence of all of the
witnesses, including the evidence of Ms KJ. Where differences remain I
am satisfied that they are the result of differing perceptions and differing,
but subjectively honest, recollections of the events. It is not necessary
for me to make findings in relation to all factual differences which arose
in the evidence (such as the exact time at which detainees were on the
Oscar Mess roof, or the exact time at which Ms KJ returned to November
Compound) and I have accordingly limited my findings to the facts directly
relevant to the acts the subject of the inquiry.

I am of the view that Dr Todd's opinion is of very little assistance.
Dr Todd did not have the opportunity to see MJ at the relevant time and
has based his opinion solely upon the statement of the doctor which is
only in very general terms. Nor does Dr Todd have any appreciation of
the circumstances in which the injury was alleged to have occurred. Ms
KJ's evidence was that she was jumping back in an attempt to prevent the
baton hitting MJ's legs which were in the air at the time they were hit.
For these reasons, I am also of the view that Mr Turner's opinion is of
little assistance. [13]

I note the opinion of Father Brennan, although given as a lay person,
is that the injuries which he observed, were consistent with a baton strike.
Father Brennan was present at the oral hearing and available in the event
that any of the parties or the Commission wished to question him about
his statement. He was not required by any party for questioning and I
have no reason to doubt his evidence, as far as it goes.

11. Factual findings on the use of tear gas and alleged
assault with a baton

I find that:

  1. Ms KJ and her son MJ were in one of the demountable buildings located
    near the southern fence of the WIRPC at the time that the CERT team
    entered Oscar Compound.
  2. Once inside the compound the CERT team moved to the area of the volleyball
    court and took up a position there in a number of lines. There were
    over 40 detainees in the area (estimates made by witnesses ranged from
    30 to 70 detainees). Many, if not all, of the detainees were armed with
    a variety of weapons, including steel bars, pieces of palisade fencing
    (the ends of which had been altered to make them into 'spears') and
    rocks.
  3. The Field Commander removed his helmet and gas mask, lowered his
    shield and went out to the front of the group of CERT Officers to talk
    to the detainees. He spoke to a number of males who were acting as representatives
    of the detainees.
  4. While in Oscar Compound, the Field Commander gave a total of three
    warnings in English to detainees to the effect that if they did not
    comply with his demands to lay down their weapons and enable a head-count
    to be conducted, reasonable force, including 'chemical agents', would
    be used. There was no interpreter present. The Field Commander believed
    that this warning was being interpreted to the detainees present by
    detainee representatives. He did not know into what language it was
    being interpreted.
  5. At some time after the entry of the CERT officers into the compound,
    Ms KJ and MJ left the demountable buildings and moved to the area of
    the volleyball court. They did so because Ms KJ had decided, with other
    women also present, that the presence of women and children may have
    been able to prevent the escalation of hostilities between the male
    detainees and the CERT officers. Ms KJ knew that the situation was a
    potentially dangerous one. She could have chosen to stay with MJ in
    the demountable in Oscar Compound or return with him to their accommodation
    in November Compound.
  6. When Ms KJ and MJ went to the area of the volleyball court they took
    up a position at the front of a group of about 12 women and children,
    and stood next to the group of male detainees. The women and children
    in this group were not armed and were not behaving in a violent or threatening
    manner towards the CERT team.
  7. The Field Commander noticed the presence of women and children in
    the compound and instructed the women and children present to leave
    immediately. The instruction was given in English. Ms KJ received and
    understood this instruction and chose to remain in the area with her
    son. Ms KJ did not think that she and her son would be exposed to the
    use of force by the CERT team as women and children were 'respected'.
    However, she must have appreciated the danger of the situation and the
    possibility that they might be caught up in any violence if the situation
    degenerated.
  8. The Field Commander also gave the third warning, in English, about
    the use of force including 'chemical agents' while Ms KJ and MJ were
    present in the area of the volleyball court. However, it is unclear
    whether or not this warning was, in fact, heard by Ms KJ. It was not
    translated into Farsi by any of the male detainees as an argument broke
    out amongst the men in the group and I find that the warning was either
    not received or not understood by Ms KJ.
  9. The view was formed by the Field Commander and other members of the
    CERT team that the situation could not be resolved and that they were
    in danger of serious injury from the armed male detainees. I do not
    criticise this. I find that the circumstances were such that there was
    both a subjective and an objective basis for genuine fear for the officers'
    safety. Some of the male detainees approached the CERT team with their
    weapons and some called out threatening words which were heard by the
    Field Commander. Their actions posed an immediate objective threat to
    the safety of the CERT officers.
  10. Upon the appropriate order, two officers 'deployed' tear gas upon
    the approach of a number of armed male detainees. These officers were
    positioned in the second row on either side of the CERT team. They deployed
    tear gas as a last resort to protect the safety of the officers in the
    CERT team. The intended 'target' of the tear gas was those detainees
    who were threatening harm to the CERT team. However, Ms KJ and MJ, who
    were not threatening any harm, were also sprayed with tear gas.
  11. As a result of being sprayed by tear gas, harm was caused to Ms KJ
    and MJ. I note that a submission was made by ACM that being sprayed
    with tear gas does not cause harm. I reject that submission. ACM policy
    rightly regards the use of tear gas as a form of 'force'. The application
    of such force is clearly intended to temporarily disable a person. It
    had such an effect on Ms KJ who was temporarily unable to see and it
    caused pain to the face and eyes of both Ms KJ and MJ. The fact that
    an injury may only be temporary does not mean that it does not cause
    harm.
  12. After tear gas was used on detainees in the area of the volleyball
    court in Oscar Compound, the detainees dispersed through the compound.
    Ms KJ was unable to see for a short time as a result of the tear gas.
    She was holding MJ to her chest and the two of them retreated to the
    vicinity of the accommodation buildings near the volleyball court. When
    Ms KJ opened her eyes she saw a CERT officer (who was wearing a gas
    mask) approach them. He raised his baton and struck MJ once across both
    legs with a baton. Ms KJ was, and remains, unable to identify the officer.
  13. Ms KJ and MJ returned to the demountable building in which they had
    been earlier in the evening. MJ was crying and holding his right leg.
    He told his mother that he had been hit by the officer and showed her
    a mark on the shin of his right leg where the baton had struck him.
  14. Ms KJ and MJ were later told by ACM officers to go to the mess building.
    Two nurses were present in the mess and the detainees were given the
    opportunity to seek medical treatment for any injuries and provided
    with advice and assistance in relation to the effects of tear gas. Cool
    running water was available for the washing of hands and faces to assist
    in decontamination after exposure to tear gas.
  15. On either Sunday 31 March or Monday 1 April 2002, Ms KJ noticed that
    MJ was limping. When Ms KJ asked him why he was limping, he showed her
    a bruise on the inside of the knee of his left leg and also a bruise
    on his right shin in the same place as she had seen the mark on the
    night of 29-30 March 2002.
  16. On Tuesday 2 April 2002, Ms KJ and MJ spoke to Father Brennan and
    some other visitors to the WIRPC. Ms KJ told them about the incidents
    of 29-30 March 2002 and MJ showed them his bruises. Ms KJ clearly described
    MJ being struck across his legs by a baton. She did not know the English
    word 'baton' until Father Brennan told it to her on that occasion. Father
    Brennan encouraged Ms KJ to take MJ to see the doctor at the WIRPC and
    make a formal complaint in relation to the incident.
  17. Ms KJ took MJ to see a doctor on 3 April 2002. No interpreter was
    present and they spoke in English. The doctor recorded the following:
    'Mother claiming that her son was hit by belt on Saturday 30/3/02 by
    Security Officer. Medical Examination: - Bruise of few days duration
    on medial aspect of left knee - abrasion + small bruise on R shin.'
  18. The bruises noted by the doctor were those caused by the assault
    on MJ by the unidentified ACM officer on the night of 29-30 March 2002.
    The notation 'belt' rather than 'baton' in the doctor's note was the
    result of miscommunication between Ms KJ and the doctor who were communicating
    without an interpreter. I note from my observations of Ms KJ that she
    speaks English with, at times, a heavy accent and this may have played
    a role in this miscommunication. In particular, she pronounces the word
    'baton' in a way that a person who did not know that this was the topic
    of her conversation might find hard to understand. I accept Ms KJ's
    evidence that she did not use the word 'belt' when speaking to the doctor
    but rather used the word 'baton'.

12. Was there an act inconsistent with or contrary
to any human right?

In deciding whether or not there was an act inconsistent with or contrary
to any human right within the terms of s 11(1)(f) of the HREOC Act, it
is necessary to determine:

  1. whether there is an 'act or practice' within the definition of the
    HREOC Act; and
  2. are such acts or practices inconsistent with or contrary to any such
    human right?

(a) Was there an 'act or practice'?

(i) The use of tear gas

I find that the use of tear gas constitutes an 'act' for the purposes
of the HREOC Act. ACM is a company performing detention services under
a contract with the Commonwealth and the use of tear gas by ACM officers
in the present circumstances was therefore done 'on behalf of' the Commonwealth.

(ii) The use of a baton

I am also of the view that striking with a baton by an ACM officer in
the present circumstances also constitutes an 'act' that was done 'on
behalf of' the Commonwealth.

It was accepted by the Department that the expression 'on behalf of'
in the context of the HREOC Act embraces 'an act done by an ACM employee
during an authorised operation in an immigration detention centre, notwithstanding
that the act itself was an unauthorised one'.

ACM, however, submitted that the act of striking a child with a baton
in these circumstances could not be said to be an act done on behalf of
the Commonwealth. It was submitted that such an act would be illegal and
could not be considered to be within the course of the officer's employment.
It would clearly exceed any authority granted by ACM to its officers.
ACM denies that the act took place, but submits that if it did happen,
it was not done 'on behalf of the Commonwealth' and does not fall within
the scope of the HREOC Act.

While I agree that the act of striking MJ with a baton was not authorised
by ACM and, in other general legal contexts may not be considered to be
an act done in the course of an officer's employment, I do not find that
this places such an act beyond the scope of the HREOC Act. I agree with
the Department's submission that such an act comes within the terms of
the expression 'on behalf of the Commonwealth'.

In reaching this conclusion it is important to consider the nature of
the HREOC Act. Remedial legislation which seeks to protect and advance
basic rights should be construed beneficially and not narrowly. [14]
It is appropriate to adopt such an approach in interpreting the provisions
of the HREOC Act which relate to human rights.

The range and scope of the human rights against which acts or practices
are to be assessed under the HREOC Act is also relevant. The human rights
set out in the ICCPR, for example, include prohibitions on torture (Article
7), slavery (Article 8) and unlawful detention (Article 9). Torture and
slavery are unlikely ever to be lawful (unlawful detention obviously cannot
be, by definition). This does not, however, take them beyond the scope
of the conventions in which they are contained. In Sarma v Sri Lanka
Communication 950/2000, for example, the United Nations Human Rights Committee
considered a case in which a boy had been abducted by an officer of the
Sri Lankan Army. The Committee held (at [9.2]) that for purposes of establishing
State responsibility, it was irrelevant that the officer to whom the disappearance
was attributed acted ultra vires or that superior officers were
unaware of the actions taken by that officer. The State party was accordingly
held to be responsible.

In the present case, MJ was a child in Commonwealth detention. MJ was
entitled to the Commonwealth's protection. The ACM officer in question
was engaged as part of the enforcement of that detention. It can not be
an answer to a claim of breach of human rights that he was a "rogue agent".

It is not necessary for me to define the precise scope of the expression
'on behalf of the Commonwealth'. It is sufficient for the present purposes
that I find that it includes an act done by an ACM officer during an authorised
operation within a detention centre, notwithstanding that the particular
act may have been unauthorised.

(iii) Policies, procedures and training

It is also appropriate to consider the policies, procedures and training
governing the use of tear gas and batons by ACM officers. These aspects
of policy, procedure and training may form part of the 'acts', namely
the use of tear gas and a baton, in the event that it is found that an
inadequacy in policies, procedures and training contributed to the commission
of those acts, or failed to prevent them (if they should have been prevented).

Further, I find that those aspects of policy, procedure and training
relevant to the particular acts may constitute, or be evidence of, a 'practice'
within the meaning of s 11(1)(f) of the HREOC Act. This is not to suggest
that I have inquired into ACM's policies, practices or training in general.
The inquiry has been limited to the policies and procedures which applied
to the use of tear gas and batons on the evening in question and the training
of the members of the CERT team who were present in Oscar Compound at
the relevant time. The issue is whether or not those policies and procedures
and that training constituted, of themselves, are inconsistent with, or
contrary to any human right.

(iv) Adequacy of medical care

An issue was raised in the course of the inquiry as to adequacy of the
medical care which was available after the incidents described above.
At the conclusion of Ms KJ's oral evidence on 10 July 2003, I indicated
that I was of the view that there was no sufficient basis for any adverse
finding to be made in relation to that issue. I find that an appropriate
level of medical care was available to Ms KJ and her son MJ following
the incidents the subject of this complaint. I accept that Ms KJ may have
felt intimidated by the situation in which she and MJ found themselves
and may have been reluctant to seek assistance. However, I find that if
Ms KJ and MJ required any medical assistance as a result of the events
the subject of this complaint, it was, or would have been, made available
to them.

(b) Inconsistency with human rights

The acts which are the subject of this complaint have been assessed against
the following relevant human rights:

The CRC

Article 3
  1. In all actions concerning children, whether undertaken by public
    or private social welfare institutions, courts of law, administrative
    authorities or legislative bodies, the best interests of the child
    shall be a primary consideration.
  2. States Parties undertake to ensure the child such protection and
    care as is necessary for his or her well-being, taking into account
    the rights and duties of his or her parents, legal guardians or other
    individuals legally responsible for him or her, and, to this end,
    shall take all appropriate legislative and administrative measures.
Article 19
  1. States Parties shall take all appropriate legislative, administrative,
    social and educational measures to protect the child from all forms
    of physical or mental violence, injury or abuse, neglect or negligent
    treatment, maltreatment or exploitation, including sexual abuse, while
    in the care of parent(s), legal guardian(s) or any other person who
    has the care of the child.
Article 37

States Parties shall ensure that:

  1. No child shall be subjected to torture or other cruel, inhuman
    or degrading treatment or punishment.
  2. .
  3. Every child deprived of liberty shall be treated with humanity and
    respect for the inherent dignity of the human person, and in a manner
    which takes into account the needs of persons of his or her age.

The ICCPR

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.

Article 10
  1. All persons deprived of their liberty shall be treated with humanity
    and with respect for the inherent dignity of the human person.
(i) The Human Rights of Ms KJ

I find that the human rights of Ms KJ were not breached for the
reasons that follow.

Ms KJ was not targeted by the tear gas that was sprayed. She was affected
by it due to her presence in the area. She chose to be in the area at
the time. She knew that the situation in the area was dangerous and she
ignored a direction to leave. I acknowledge that Ms KJ made these decisions
for what she believed to be a good reason - namely, to prevent a confrontation
between ACM officers and detainees. I accept that she did not believe
that in doing so she (or her son) would be exposed to harm. I also accept
that she was not offering any violence to ACM Officers and did not understand
that tear gas was about to be used.

However, tear gas was used by the ACM officers in response to what they
perceived to be a direct threat to their physical safety by the male detainees
in the immediate vicinity of Ms KJ. On the evidence before me, I find
that their perception was an accurate one. The fact that Ms KJ was affected
by tear gas is unfortunate, but it is not a breach of her human rights
in all of the circumstances of the case.

The fact that Ms KJ did not appreciate that a warning had been given
in relation to the use of tear gas is more than unfortunate. The 'warning'
was in English and read off a card. The use of detainees as 'de facto'
interpreters, particularly in situations such as the present one, is highly
unsatisfactory. In such circumstances there can be no confidence that
any warning will be properly or fully translated.

It does not necessarily follow, however, that Ms KJ's human rights were
breached. I am of the view that Ms KJ must have appreciated the danger
of the situation and the possibility that she might have been exposed
to harm were the situation to become violent as it did. It is also, in
my view, relevant that Ms KJ did understand the direction to leave and
that she chose not to do so.

I therefore find that that Ms KJ's exposure to tear gas does not constitute
inhuman or degrading treatment in all of the circumstances. I find further
that there has not been established a failure to respect her humanity
and inherent dignity.

(ii) The human rights of MJ

I find that the human rights of MJ were breached when he was struck with
a baton across both legs by an ACM officer. This act constitutes inhuman
and degrading treatment and did not respect his humanity or inherent dignity.
It was inconsistent with and contrary to article 37(a) and (c) of the
CRC and articles 7 and 10 of the ICCPR.

I find that ACM policies, procedures or training did not contribute to
this act, nor did they form a part of it.

The situation in relation to the use of tear gas is more complicated.
I have not found the issue an easy one to resolve. I am not aware of any
other occasion on which a seven-year old child in Australia has been sprayed
with tear gas.

This is not an inquiry into the circumstances or propriety of the detention
of children. Nevertheless, it is a matter of concern that detained children
can be exposed to the risk of being harmed by tear gas. That said, on
balance it is my view that in the particular circumstances that faced
the CERT team on the night in question the exposure of MJ to tear gas
did not breach his human rights.

Significantly, MJ was not 'targeted' with the tear gas that was sprayed,
but was affected by due to his presence in the area. He was present in
the area by reason of a conscious decision by Ms KJ to go that area, and
her subsequent decision not to leave when directed to do so. I note my
comments above in relation to Ms KJ's reasons for doing so. I also acknowledge
that MJ was not involved in any relevant way in the violence that was
being threatened towards the ACM officers.

I find that tear gas was used by the ACM officers in response to a direct
threat to their physical safety by the male detainees in the area. In
all of the circumstances of the case, I find that the harm caused to MJ
by virtue of his exposure to tear gas does not constitute a breach of
his rights under article 37 of the CRC or articles 7 and 10 of the ICCPR.

The CRC also imposes a positive obligation upon State parties, and those
who act on their behalf, to take steps to protect children from harm.
In the present case it is of concern that ACM policies which applied in
dealing with the situation which developed on 29-30 March 2002 make no
mention of the special vulnerability of children and the need to take
special measures to protect children from harm. The training of ACM officers
is similarly silent on the special measures that might be taken to protect
children from harm in situations such as that arising in the present case.

Nevertheless, I find that in the particular (and in some respects extreme)
circumstances of this case, adequate care and protection was afforded
to MJ. Significantly, there was safe accommodation available to him, both
in November Compound and Oscar Compound. The actions of the Field Commander
were also such that his mother had the opportunity to remove him from
the area of the conflict.

I also accept that the ACM Centre Manager and the ACM Field Commander
acted, in their view, in a way which was most likely to protect children
and their best interests. In the circumstances I am not satisfied that
there was a breach of MJ's human rights.

In my view it would be highly desirable for the policies and procedures
which relate to the use of force and emergency situations to make specific
mention of the special needs of children. It would also be highly desirable
for the special needs and vulnerabilities of children in such situations
to be reinforced in the training of officers. There is, however, no evidence
that this would have altered the outcome in the present case.

While I am concerned about whether or not ACM's policies, procedures
and training are adequate to protect children from 'all forms of physical
and mental violence, injury or abuse' in other situations, this inquiry
has been limited to the specific circumstances of the complaint made by
Ms KJ. It is therefore not appropriate for me to make any broader findings
about ACM's policies, practices and training.

13. Recommendations

I have found that MJ's human rights were breached when he was struck
with a baton by an unknown ACM officer.

Section 29(2)(b) of the HREOC Act requires that where I conclude that
an act is inconsistent with or contrary to any human right, I may make
recommendations for preventing a repetition of that act. Section 29(2)(c)
of the HREOC Act states, relevantly, that I may also make a recommendation
for compensation or the taking of other action to remedy the loss or damage
suffered as a result of the act or practice.

In a notice issued to the parties under s 29(2)(a) of the HREOC Act,
I made a recommendation that ACM conduct a full and thorough investigation
into the assault of MJ. I recommended that such an inquiry include the
interviewing of all officers who were in the CERT team present in Oscar
Compound at the relevant time of the assault - something which had not,
to my knowledge, been done. I further recommended that appropriate action,
including referral to the police, should be taken in the event that the
officer responsible is identified. ACM's response to this recommendation
is set out below.

Ms KJ has stated that she does not seek compensation. She seeks only
an apology and an acknowledgement that her son's rights were breached.
While I might otherwise have considered recommending compensation, in
light of the complainant's views, I have not done so. I do, however, recommend
that an apology be made by the Department on behalf of the Commonwealth
for the breach of MJ's human rights which I have found. The Department's
response to this recommendation is set out below.

14. Action by the Department and ACM in response to
the findings and recommendations

(a) Action by ACM in response to the findings and
recommendations

While not accepting my findings, ACM has stated that it wishes to comply
with the recommendation I have made 'to the best of its ability'. However,
it claims that it cannot 'either appropriately or realistically take the
investigation of the assault any further' and states as follows:

  • The evidence before the Delegate shows that the allegation that [MJ]
    had been struck with a baton was first discovered by ACM on 29 April
    2002, a month after the alleged incident. The Centre Manager initiated
    a full medical file audit. This audit found the Doctor's report of an
    allegation that [MJ] had been struck with a belt.
  • On that same day, ACM quite properly and immediately referred the
    allegation to FAYS [the South Australian Department of Family and Youth
    Services] and the South Australian and the Australian Federal Police.
    A formal request to investigate the allegation was made the Australian
    Federal Police on 30 April 2002. The relevant authorities investigated
    the matter and later closed their files because, ACM understands, that
    there was insufficient evidence to warrant a prosecution.
  • As the Commission would appreciate, ACM does not have the requisite
    power or authority to conduct criminal investigations. Unlike the Commission
    or the police, ACM has no coercive powers to compel the co-operation
    of former ACM officers in answering questions about the assault found.
    Nor should it. It would be highly inappropriate for ACM to conduct criminal
    investigations into the alleged criminal acts of its employees. Any
    such investigation would potentially prejudice police action.
  • ACM conducted an internal investigation in August 2002. That investigation
    was, as is appropriate, confined to determining whether there have been
    breaches of ACM's internal policies, procedures and codes of conduct.
    ACM's internal investigations must and cannot impact in any way on the
    criminal investigations undertaken by the police authorities.
  • ACM's investigation concluded that while [MJ] had sustained bruising
    to his legs, the cause of his injury could not be stated with certainty.
    There was no evidence to identify the alleged assailant.
  • In preparing for the July 2003 hearings in this complaint, attempts
    were made to locate and interview anyone who had been in the CERT team
    on 29 March 2002. As a result of these investigations, we put before
    the Delegate statutory declarations from those officers who were located
    and were in Oscar Compound at the relevant time. These officers all
    denied that they had ever struck a child with a baton or that they had
    seen any other officer strike a child with a baton. The Delegate accepted
    their evidence unreservedly.
  • ACM no longer employs many of the CERT officers in Oscar Compound
    on 29 March 2002 at the time relevant to the assault found. The current
    whereabouts of many of these officers is unknown to ACM despite diligent
    efforts to locate these people.

ACM therefore proposes to refer the assault as found by the Delegate
to both the South Australian and Federal Police and to formally request
that they both re-open their investigations. We propose to provide these
authorities with the Delegate's findings and all the evidence before
him including the transcript of the public hearings.

ACM will of course co-operate with these authorities to the extent
necessary to facilitate their investigations.

(b) Action by the Department in response to the findings
and recommendations

The Department has stated that 'it intends, in line with the Delegate's
recommendation, to make an apology to Ms [KJ] and her son. The apology
will be made on a without prejudice basis and with no admission as to
liability'.

I understand that Ms KJ received a written apology from the Department,
dated 23 December 2003.

Stephen Roder

Delegate of the President


APPENDIX A

Functions of the Human Rights and Equal Opportunity Commission in relation
to human rights

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

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

  1. The functions of the Commission are:
    1. to inquire into any act or practice that may be inconsistent with
      or contrary to any human right, and:
      1. 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
      2. where the Commission is of the opinion that the act or practice
        is inconsistent with or contrary to any human right, and the Commission
        has not considered it appropriate to endeavour to effect a settlement
        of the matters that gave rise to the inquiry or has endeavoured
        without success to effect such a settlement - to report to the Minister
        in relation to the inquiry.

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

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

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

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

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

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

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


APPENDIX B

Evidence before the Commission

  1. Letter dated 28 October 2002 from the Department and Attachments.
  2. Letter dated 15 May 2003 from the Department and Attachments including
    the enclosed 5 video tapes.
  3. Letter dated June 2003 from the Department and Attachments.
  4. Letter dated 2 July 2003 from the Department and Attachments.
  5. Letter dated 1 August 2003 from ACM and Attachments.
  6. Statement of ACM Officer 1.
  7. Statement of ACM Nursing Staff 1.
  8. Statement of Father Frank Brennan.
  9. Statement of ACM Nurse 2 (3 July 2003).
  10. Statement of ACM Nurse 2 (8 July 2003).
  11. Statement of ACM Nurse 3.
  12. Statement of ACM Officer 2.
  13. Statement of ACM Officer 3.
  14. Statement of ACM Officer 4.
  15. Statement of ACM Officer 5.
  16. Statement of ACM Centre Manager (10 July 2003).
  17. Statement of ACM Centre Manager (1 August 2003).
  18. Statement of ACM Doctor.
  19. Statement of ACM Officer 6.
  20. Statement of ACM Field Commander.
  21. Statement of ACM Nurse 4.
  22. Statement of ACM Officer 7.
  23. Statement of Agreed Facts 9 July 2003.
  24. Statement of Dr Bryan Todd.
  25. Statement of Senior Sergeant William Turner.
  26. Statement of ACM Interpreter.
  27. Table of Meteorological Observations for March 2002, Bureau of Meteorology.
  28. Baton produced during public hearing on 31 October 2003.
  29. Documents produced to the Commission during evidence given at the
    public hearings, namely:
  • ACM Memorandum dated 29 April 2002;
  • Departmental Minute dated 30 April 2002;
  • two photographs;
  • a plan drawn by Ms KJ during her evidence; and
  • Two plans of WIRPC referred to by various witnesses during their
    evidence.

ENDNOTES

  1. On 28 May 2003 I determined
    that the anonymity of the complainant and her son should be preserved
    in order to protect their privacy and human rights. Consistent with
    that direction, the identifier 'KJ' is used for the complainant. The
    identifier 'MJ' is used for her son. As will appear, I have made a number
    of similar directions in respect of employees of ACM.
  2. The chemical agent
    used on the evening in question was, in fact, 'OC Spray'. I will use
    the expression 'tear gas' throughout as it is a common term for chemical
    agents of this type.
  3. In this report, a 'breach'
    of human rights is used as shorthand for an act or practice that is
    inconsistent with, or contrary to any human right.
  4. The question of whether
    or not the detention of Ms KJ and MJ was itself inconsistent with, or
    contrary to their human rights was not the subject of this inquiry.
    I note, however, that the Commission has previously found the mandatory
    detention of unlawful non-citizens to be inconsistent with and contrary
    to their human rights, amounting to 'arbitrary' detention; Those
    Who've Come Across the Seas: Detention of Unauthorised Arrivals
    ,
    1998.
  5. Many were in the form
    of statutory declarations.
  6. Detainees at the WIRPC
    were housed in several "compounds", which were identified by descriptors
    from what was once the "radio" and is now the NATO phonetic alphabet.
  7. I am of the view that
    it is not appropriate to identify detainees who were named in the course
    of the inquiry and have accordingly avoided naming them in this notice.
  8. ACM made the submission
    that Ms KJ and MJ were 'involved' in violence and damage because Ms
    KJ chose to be present at times when there were incidents of violence
    and property damage. However, ACM accepts that neither were personally
    violent or damaged property. I do not accept that mere presence justifies
    a finding that Ms KJ or MJ were 'involved' in violence or damage. The
    evidence does not show that they participated in any way in this behaviour,
    or offered any encouragement to those who were doing so.
  9. Ms KJ was questioned
    about a video recording which may have suggested that she, in fact,
    passed through the 'sterile zone' at a later time. I have reviewed the
    evidence on this point and found that the video recording was inconclusive.
  10. ACM also provided
    evidence from an interpreter which confirmed that the word 'baton' is
    the same in English as in Farsi and also that the word for 'belt' in
    Farsi is 'kamar band'.
  11. The document does
    not indicate why this latter purpose is confined to unaccompanied minors.
  12. Again in the form
    of statutory declarations.
  13. Mr Turner also expressed
    a view that any abrasion on MJ's legs was "inconsistent with the alleged
    baton strike". That was because the type of baton in question has a
    smooth surface. Mr Turner did not see the baton that was produced to
    me at the final public hearing. While apparently manufactured with a
    smooth surface, the surface of that baton had been broken in a number
    of places.
  14. Waters v Public
    Transport Corporation
    (1991) 173 CLR 349 at 359 per Mason CJ and
    Gaudron J, at 394 per Dawson and Toohey JJ, at 407 per McHugh J; IW
    v City of Perth
    (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh
    J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and
    58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 222 Kirby
    J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at
    332 per Kirby J.

Last
updated 4 March 2004.