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HREOC Report No. 35

Report of an inquiry
into a complaint by
Mr AV
of a breach of his human rights
while in immigration detention 

HREOC Report No. 35


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

Dear Attorney

Pursuant to section 11(1)(f) and 20(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I attach a report of my inquiry into a complaint against the Commonwealth of Australia (Department of Immigration and Multicultural Affairs) and GSL (Australia) Pty Ltd.  I have found that acts done on behalf of the Commonwealth were contrary to the human rights of the complainant as provided for in articles 7 and 10 of the International Covenant on Civil and Political Rights.

Yours sincerely,

John von Doussa QC
President
April 2006



Table of Contents

  1. INTRODUCTION
  2. OUTLINE OF COMPLAINT
  3. OUTLINE OF THE RESPONSE
  • OTHER RELEVANT EVIDENCE
  • RELEVANT LEGAL FRAMEWORK
  • CONCILIATION
  • TENTATIVE VIEW
  • FINDINGS
  • RECOMMENDATIONS
  • RESPONSE TO THE FINDINGS AND RECOMMENDATIONS
  • APPENDIX A
  • ENDNOTES

  • 1. INTRODUCTION

    This report concerns an inquiry by the Human Rights and Equal Opportunity Commission (the Commission) into a complaint by Mr AV1 concerning his treatment while in immigration detention. This inquiry was conducted pursuant to section 11(1)(f) and 20(1) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) under which the Commission has the function of inquiring into acts or practices of the Commonwealth that may be inconsistent with or contrary to human rights.

    As set out in section 8 below, I have found that Mr AV’s human rights were breached by acts done on behalf of the Commonwealth while he was in immigration detention.

    My recommendations are set out in section 9 below. For the reasons set out there, I have recommended that an apology be made to Mr AV and that a copy of this report be provided to persons involved in this incident. I have further recommended that $4,000 be paid to Mr AV. In accordance with those recommendations, the Department of Immigration and Multicultural Affairs (‘DIMA’),2 has provided an apology on behalf of the Commonwealth to Mr AV and agreed to pay him compensation.

    2. OUTLINE OF COMPLAINT

    On 8 September 2004, Mr AV was taken into immigration detention in the Villawood Immigration Detention Centre (‘Villawood’). That centre is operated by GSL (Australia) Pty Ltd (‘GSL’) on behalf of the Commonwealth.

    On 13 September 2004, Mr AV made a complaint to the Commission in relation to his treatment, including the use of force, by GSL officers whilst in detention at Villawood. In particular, Mr AV’s complaint stated:

    While I was in a conversation with a female [member of] staff, suddenly some security officers came down, pulled me to the corner of the passage & pushed me on the ground… [One strongly built] officer was holding my left arm & twisting. I was screaming from extreme pain but they kept twisting it and eventually it was broken.

    Mr AV claims that he asked to see a doctor due to the pain and an hour later a nurse attended to him.  He states that two days later he was taken for an x-ray which revealed that his left arm was broken.

    Upon commencing an investigation into this complaint, it became apparent from evidence obtained by the Commission that an incident which followed that described by Mr AV in the passageway may also have involved a breach of his human rights. That incident involved the restraint and search of Mr AV in a holding room in a manner that suggested an unreasonable use of force. This incident therefore also became a part of the inquiry.

    Mr AV was removed from Australia shortly after the incident the subject of this complaint and his whereabouts were unknown to the Commission until November 2005 when Mr AV contacted the Commission. My inquiry has therefore been conducted largely in his absence.

    3. OUTLINE OF THE RESPONSE

    3.1 Initial Response from DIMA

    An initial response to Mr AV’s complaint was received from DIMA on 24 January 2005.

    DIMA stated in that response that Mr AV was in immigration detention at Villawood from 8 September 2004 until his removal from Australia on 22 September 2004.  Mr AV was detained as an unlawful non-citizen pending his removal from Australia.

    From the police records provided by DIMA, it appears that the complainant attended Marrickville Police Station at 2.10am on 8 September 2004. The police report states that he was moderately intoxicated and that he had requested police pay his fare back to home country, India, as he had no money. Immigration records indicate that the complainant’s Student Visa expired on 30 August 2004.  DIMA faxed an order authorising police to detain the complainant pending transfer to Villawood. At about 3.40am staff from Villawood attended the police station and took the complainant into their custody.

    DIMA stated that GSL conducted an internal investigation into the complainant’s allegations about subsequent incidents at Villawood. DIMA generally concurred with the version of events set out by GSL in the investigation report (summarised below). DIMA agreed with the conclusion expressed in the report that based on the available evidence, it is not possible to determine when the injury to the complainant’s wrist was sustained. The investigation report however goes on to find that actions by the GSL officers, which were not the subject of the complaint by the complainant about his left arm injury, were inappropriate and constituted an unreasonable use of force. DIMA stated in this response that whilst these actions were regrettable and warranted disciplinary action, they did not constitute a breach of the complainant’s human rights.

    GSL’s internal decision was to formally caution the officers and facilitate their return to work. This action was taken because GSL felt there was insufficient evidence to prove ‘beyond reasonable doubt’ that they were responsible for misconduct. DIMA stated that they were not entirely satisfied with GSL’s response to the recommendations of the internal investigation and that DIMA was considering its position and possible actions it may take.

    On 13 September 2004, GSL formally advised DIMA of the incident and referred the matter to the NSW Police Service. DIMA understands that the NSW Police discontinued its investigation because the complainant was removed from Australia on 22 September 2004.

    3.2 The Investigation Report

    The internal GSL investigation was conducted by Mr Peter Saxon, General Manager Strategic Development, GSL.

    The report by Mr Saxon notes that the formal written complaint by the complainant was dated 11 September 2004 and addressed to the GSL General Manager at Villawood with copies to DIMA, Ombudsmen, the Australian Red Cross and the Commission.  On receipt of the complaint, the GSL General Manager, Mr Greg Howden referred the matter to the NSW Police as it involved an allegation of serious assault and Bankstown Police commenced an investigation into the incident. This investigation lapsed once the complainant was removed from Australia.

    The investigation report notes that the two GSL officers primarily involved in the matter refused to be interviewed citing legal advice they had received.

    The report is compiled in two parts. The first part addresses the allegation that the complainant’s wrist was fractured due to incorrect techniques used by GSL staff as he was being taken from the reception area to a holding room, and the second part is an investigation into incidents that occurred once the complainant was in the holding room after his induction.

    1. Availability of CCTV Images
    2. Mr Saxon notes that he viewed CCTV (closed circuit television) images of the incident as part of his investigation. A copy of these images was provided to, and viewed by, the Commission. Mr Saxon states that the configuration of cameras within the reception area at Villawood, at the time of the investigation, was flawed in that there are a number of areas without any coverage.  In this particular incident, the only footage available was the lead up to the incident whilst the complainant was being inducted in the reception area and incidents that occurred after his placement within the holding room. The incident in which the complainant alleges his arm was broken took place in the passageway to the holding rooms which was not covered by any camera. Mr Saxon notes that this area has been reviewed by Villawood management and a request for additional camera facilities has been submitted to DIMA for approval.

    3. Internal Investigation: Fracture of Wrist
    4. Incident Report of Officer OA

      At 7.14am on the morning on 8 September 2004, Detention Operations Coordinator, who will be identified as officer OA,3 submitted an incident report for Use of Force in relation to the complainant.  It states that at approximately 4.40am the complainant arrived from Marrickville Police Station and was intoxicated.  At 5.20am a Detention Services Officer, who will be identified as OB, called for assistance in ‘property’ (the reception area). Officer OA and another Detention Services Officer, OC, attended and were advised that the complainant was non compliant and refusing to hand over a mobile phone which was in his pocket.  The incident report states that OA and OC escorted the complainant to the holding room to pat search him and at that point the complainant became aggressive towards OC and minimum force was used to restrain him.  He gave up his mobile phone and was then pat searched. The complainant was then conveyed to Stage 1 for the non compliance and aggressive behaviour.

      The incident report notes that the initial escort from Marrickville Police Station to Villawood was conducted by Detention Services Officers OD and OE.  They were advised by Marrickville police that the complainant was under the influence of alcohol but had not been aggressive or violent. On arrival at the centre the complainant was escorted into the reception area where he was seated on a chair whilst the induction process commenced.  Mr Saxon notes that the CCTV images show the process commencing at 4.41am and there is nothing indicating any lack of compliance or aggression by the complainant.  At some point OE placed the complainant’s mobile into a bag on the desk in front of her.  She hands back a number of items including a wallet and some papers.  She alleges that the complainant then grabbed the mobile telephone from the bag and placed it in his pocket refusing to hand it back. She began to reason with him but although he was not aggressive, he refused to comply with her direction. OB, who was also in the reception, called for assistance even though OE told her that she did not think it was required.  Within minutes, OA and OC appeared at the office and requested the complainant accompany them.  The CCTV footage shows that these officers arrived at 5.20am and they can be seen talking to the complainant for less than 10 seconds before the complainant and officers move out of camera view.

      A subsequent report submitted by officer OA is said by Mr Saxon to be a ‘cut and paste’ of the details submitted in the Incident report that OA had completed.

      Statement by OE

      In a statement by OE, the officer states that officers OA and OC asked the complainant to give up his mobile telephone but he continued to refuse their requests as he was being led into the holding rooms.  Within seconds of them disappearing from her vision, OE heard sounds of the struggle and made her way to the holding room corridor where she observed the complainant attempt to kick OC in the leg.  The complainant was flanked by the officers, one on each side.  She saw the complainant and OC fall to the ground in the corridor so she went to assist.  As she reached the complainant she took hold of his right wrist and pulled his hand from his trouser pocket, placing his wrist in a ‘pistol grip’ hold.  As she pulled his hand out of the pocket, the mobile also came out and landed on the floor.  She kicked the phone away and then assisted in raising the complainant to a standing position outside the doorway of the holding room.  He was then walked into the holding room and she let him go.

      Mr Saxon notes that the CCTV images show the complainant entering the room at 5.23am, initially his left arm is outstretched behind him and his left wrist is held by someone outside the door.  As the entry into the room progressed, it is clear that the left wrist was being held in a ‘pistol grip’ hold by OC. OE states she entered the holding room on several occasions to collect property located on the complainant and at one stage she became aware of the complainant head-butting something in the room.

      Report by OC

      A report submitted by officer OC dated 17 September 2004 outlines the incident and the actions he took in relation to the incident. Mr Saxon found that this document was extremely accurate as to the sequence and timings of events which tie exactly with the images captured by the CCTV camera.  It was his view that this report was compiled by OC at a time after he had viewed the CCTV images. Mr Saxon states that if this was the case, this viewing was unauthorised. 

      OC’s report states that he received a call at 5.15am from OB to attend and assist her with a non-compliant new arrival in property.  At 5.18am he arrived at the Area in company with OA and on arrival he observed that the complainant was extremely agitated, irate, non-cooperative and appeared to be under the influence of a substance.  Mr Saxon notes that the CCTV images do not appear to show any non-compliance, irate or agitated behaviour on the part of the complainant. Mr Saxon states that there is no CCTV evidence to corroborate most of the remaining claims made by OC until placement in the holding room.

      OC’s report then states that OE advised him that the complainant was detained by Marrickville Police as a result of a disturbance with his partner via a mobile phone call and as a result of being intoxicated, argumentative and non-compliant with Police.  Mr Saxon notes that OC’s statement is at odds with the information supplied by OE and OD who both state the complainant was compliant, not aggressive and did not cause any issues with the apprehending police or at any time during the escort to Villawood. OC then claims that OB advised him that the complainant would not comply with the code of conduct regarding surrendering items of contraband and OC advised the complainant that he must surrender his mobile due to the rules of the centre. The complainant is alleged to have replied in an irate and aggressive manner and refused to hand over the item.  He was escorted to the holding room by OC and OA and at a point outside the holding room doorway he became aggressive towards OC, spitting at him and attempting to head-butt him.  OC states that control and restraint techniques were employed and the complainant was placed on the floor in the corridor.  Mr Saxon notes that this is fairly consistent with the statement provided by OE.

      OC states that the complainant then gave up his mobile phone; however it is the evidence of OE that the phone became dislodged from his pocket when she used the ‘pistol grip’ hold on his right wrist.  Mr Saxon states that this is not a major point but does provide some evidence to the supposition that OC produced his report from watching the CCTV images. 

      A security issue with regards to the computer imaging system was identified by Villawood management shortly after this incident when it was found that the downloaded images could be easily accessed on the computer without the use of a password.  This meant that although it would be difficult to destroy or tamper with any footage, it was possible.  The system is now password protected and is only available to two staff at the centre.

      Medical Notes

      The report by Mr Saxon notes that a nurse attended the reception area at 6.42am and conducted a medical examination of the detainee.  The nurse reported ‘presented with heavy intoxication of ETOH.  Needed to sober prior to reception.  Stable ATOR.  Last intake was 15 schooners for 8 hrs.  Both wrists were checked and there were no signs of post cuff application injury’.

      The complainant was then examined by a doctor at 5.40pm on 9 September 2004.  It was noted by the doctor Mr AV had swelling of the left wrist.  At 12.35pm on 10 September 2004 Mr AV was again examined and was seen moving his wrist freely and in no obvious pain.  His wrist was x-rayed and a fracture was noted and he was transported to Fairfield Hospital for further x-ray and treatment where a back slab was applied.  The diagnosis was a small fracture to the underside of the left wrist.

    5. Investigation Report Conclusions: Fracture of Wrist
    6. Mr Saxon concluded that although the complainant’s allegation that he received the fracture to his left wrist whilst in the custody of GSL officers was possible, the evidence was not sufficiently strong to establish the allegation ‘either without doubt or [as a] probability’.  He states that the obvious point in time when the wrist may have been fractured was during the reported struggle and use of control and restraint techniques in the corridor of the holding room.  However, he notes that the camera images from 5.23am to the complainant’s departure from the room at 5.37am show the complainant using both arms to support himself against the wall, gesticulating with both arms and assisting himself to rise from the bench by pushing down onto his knees with both hands.  Mr Saxon states that there are no images where he appears to be in any pain, or crying out or screaming as he has stated in his complaint.  There are a series of images upon his initial entry to the holding room where he appears to clutch his left forearm immediately after his arm is released from the ‘pistol grip’ hold by OC.  However, Mr Saxon notes that the lack of displaying pain or discomfort could be due in part to his intoxication or the pain may not have been apparent until swelling commenced. Taking all these matters into account he concludes that the injury could just as likely have occurred before he arrived at Villawood, or after he arrived in Stage 1. 

      The report concludes that the correct control and restraint techniques were applied to ensure compliance from the complainant after there had been some form of attempted assault by him upon OC.  The notes of a medical examination conducted at 6.42am that morning indicate that a check was made of the wrists of the detainee without any noticeable injuries.  The complainant presented to the doctor at Villawood some 36 hours after allegedly receiving the injury, complaining of pain and swelling in the left wrist.

    7. Internal Investigation of Further Incidents

    In the second part of his report Mr Saxon states that he has serious concerns regarding the actions of GSL officers whilst the complainant was detained in the holding room.  He notes that the CCTV images revealed a number of incidents that he believes could render at least one officer subject to possible criminal proceedings and further breaches of the Immigration Detention Standards (‘IDS’), Code of Conduct and Operating procedures are also evident.  These matters concern the actions of OA and OC in pat-searching and allegedly restraining the detainee.

    Mr Saxon observes on the CCTV recording that after searching the complainant, OA lunges at him, his right arm raised and grips the complainant around the throat with his hand, forcing the complainant’s head back to wall.  OA maintains hold on the complainant’s throat while OC raises his right hand and extends his index finger to the complainant’s face.  OA then releases his grip from the throat of the complainant and moves away from OC and the complainant.  OC then moves closer to the complainant and his face is inches from complainant’s face.  The complainant then moves to his right against the back wall and OC moves with him.  OC has both hands gripping both lapels of the complainant’s jacket and forcibly moves the complainant back to corner of the room.  OC then removes the complainant’s jacket.  OA then pushes the complainant in the chest towards the wall and OA holds the complainant against the wall by placing his left arm onto the complainant’s chest. 

    Mr Saxon claims that the complainant should only have been subjected to a ‘pat down’ search.  He notes the fact that OC rummages through the complainant’s clothing and removes items from his pockets actually constitutes a strip search under the Migration Act 1958 and no authorisation was obtained prior to it being done. He further claims that the removal of the complainant’s belt was also a breach of the IDS.

    Mr Saxon states that the images show that force was used during most of the search of the complainant, commencing with him being forcibly turned towards the wall by OC and held by the arms by both officers whilst the search was being conducted.  He states that the use of force is permitted during screening, searches and strip searches. He notes that the centre’s operations procedures state that an officer must allow the detainee a reasonable period in which to voluntarily submit to the search. Mr Saxon concludes that there appears to be no such time given by these officers in this instance. There are instances of grabbing at the detainee’s clothing, pulling of the detainee, forcibly holding him against walls and general threatening or intimidating behaviour against the detainee. It is Mr Saxon’s submission that the behaviour of the officers was tantamount to bullying and as such is in breach of the IDS, Code of Conduct and Operating Procedures.

    OC claims that the complainant became aggressive and he and OA applied reasonable force to restrain him. Mr Saxon notes that the CCTV images do not show that the complainant tried to assault OC but they do show OA lunging at the complainant with his right arm and gripping the complainant by the throat, pushing his head back to the wall.  OA maintains his hold on the complainant’s throat for some five seconds whilst OC wags his finger at the complainant. Mr Saxon found that this action constitutes an assault and it could not be termed reasonable force as defined within the Migration Act 1958, IDS and OPS and is tantamount to serious misconduct.  As a result, Mr Saxon recommended that both officers face disciplinary action.

    The report included a number of attachments listed below:

    • Letter of complaint by Mr AV;
    • Correspondence between DIMA and GSL regarding reporting of incident;
    • IHMS report concerning initial examination of the complainant;
    • Incident report VW04-356;
    • Email of GM Greg Howden;
    • Copy of CD containing CCTV images
    • Still camera shots of reception area
    • Report of OC; and
    • Report of OA.

    3.3 Further Response from DIMA

    On 4 August 2005, further information was provided by DIMA upon request from the Commission. DIMA stated that its advice from GSL was that ‘pistol grip’, an expression used in the investigation report, is not the official term used for the hold used by the GSL officers in this instance, but the investigating officer’s choice of words. GSL refers to this restraint as a ‘standard wrist lock’. It is a common restraint technique used to ensure compliance. GSL control and restraint techniques are designed to ensure compliance with the minimal chance of trauma to the person who must be restrained and are internationally accredited. The GSL Operations Manager advised that based on his observations of the application of the standard wrist lock, it appears to him that the process was properly applied and given that the complainant was not resisting the application of force that in itself also suggests that the lock was appropriately applied.

    DIMA also stated that it has sanctioned GSL because it concluded that GSL officers had breached the IDS, in particular IDS 6.4.7 (a) inappropriate use of force, IDS 6.5.1 (b) strip search of detainee conducted unlawfully and IDS 6.8.2 (a) assault.

    4. OTHER RELEVANT EVIDENCE

    DIMA has also provided to the Commission other relevant documents listed below:

    • NSW Police Service Narrative Report;
    • NSW Police Service Event Report;
    • DIMA NSW Incident/Information Report completed by a DIMA officer on 20 September 2004;
    • DIMA Performance Report by a DIMA officer on 8 September 2004;
    • GSL Reception Assessment Checklist and Initial Reception Assessment;
    • GSL Incident Report VW04-360;
    • GSL Escort Security Assessment-Application of Restraints; and
    • CCTV footage of the reception area and the holding cell on the morning of 8 September 2004

    5. RELEVANT LEGAL FRAMEWORK

    5.1 The HREOC Act

    Section 11(1)(f) of the HREOC Act provides that the Commission has the function of inquiring into any act or practice that may be inconsistent with or contrary to any human right. Section 20(1)(b) requires the Commission to perform that function when a complaint in writing is made to it alleging such an act or practice. The expressions ‘act’ and ‘practice’ are defined in section 3 to include an act or practice by or on behalf of the Commonwealth, or under an enactment. Section 3(3) of the HREOC Act also provides that a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act. The expression ‘human rights’ is also defined in section 3 and includes the rights and freedoms recognised in the International Covenant on Civil and Political Rights (‘ICCPR’), which is set out in Schedule 2 to the HREOC Act.

    5.2 The International Covenant on Civil and Political Rights

    Article 7 of the ICCPR provides:

    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.

    The UN Human Rights Committee (‘UNHRC’) have noted that:

    The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual.4

    Article 10.1 of the ICCPR provides:

    All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

    Article 10.1 extends to all deprivations of liberty, including that which occurs when a person enters immigration detention, and requires that minimum standards of humane treatment be observed in the conditions of detention. The UNHRC has stated that

    [a]rticle 10, paragraph 1, imposes on State parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty, and complements the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7….Thus, not only may persons deprived of their liberty not be subjected to treatment which is contrary to article 7…but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons…5

    It is clear from UNHRC jurisprudence that the threshold for establishing a breach of article 10.1 is lower than the threshold for establishing ‘cruel, inhuman or degrading treatment’ within the meaning of article 7 of the ICCPR.6

    Professor Manfred Nowak summarises this jurisprudence as follows:

    …several general conclusions may be drawn for the interpretation of article 10.1: In contrast to article 7, article 10 relates only to the treatment of persons who have been deprived of their liberty. Whereas article 7 primarily is directed at specific, usually violent attacks on personal integrity, article 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, article 7 principally accords a claim that State organs refrain from certain action (prohibition of mistreatment), while article 10 also covers positive State duties to ensure certain conduct: Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of human treatment).

    In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). Finally it is…stressed that the requirement of humane treatment pursuant to article 10 goes beyond the mere prohibition of inhuman treatment under article 7 with regard to the extent of the necessary ‘respect for the inherent dignity of the human person’. 7

    In my view, one can safely assume that another basic need of detainees is that their safety and security whilst detained is guaranteed and that ensuring this is necessary for State Parties to fulfil their obligation to treat detainees with humanity and respect for the inherent dignity of the human person.

    The content of articles 7 and 10 has also been developed with the assistance of a number of United Nations instruments that articulate minimum international standards of people deprived of their liberty, including the Standard Minimum Rules for the Treatment of Prisoners8 (the ‘Standard Minimum Rules’) and the Body of Principles for the Protection of all Persons under Any Form of Detention9 (the ‘Body of Principles’).

    The Third Committee of the General Assembly in its 1958 report on the drafting of the ICCPR stated that the Standard Minimum Rules should be taken into account when interpreting and applying articles 7 and 10.10 The UNHRC has also indicated that compliance with the Standard Minimum Rules and the Body of Principles is the minimum requirement for compliance with the ICCPR’s obligation that people in detention are to be treated humanely under articles 7 and 10.11

    The Standard Minimum Rules and the Body of Principles are intended to describe in detail a model system of penal institutions. Immigration detention facilities are not penal institutions in the sense that they do not house convicted criminals or people charged with a criminal offence. Nevertheless, the Standard Minimum Rules and Body of Principles are expressed to set out minimum conditions which are accepted as suitable by the United Nations for the general management of institutions housing all categories of prisoner, and I consider that they provide valuable guidance in interpreting and applying articles 7 and 10 of the ICCPR.

    The Body of Principles is expressed to apply for the protection of all persons under any form of detention or imprisonment.

    Principle 1 provides:

    All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

    Principle 6 states that:

    No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.

    The Standard Minimum Rules set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.

    Rule 54(1) provides that:

    Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.

    5.3 Other Relevant Standards

    In responding to this inquiry, DIMA has stated that the definition of the term ‘detain’ in section 5(1) of the Migration Act 1958 permits officers to take such action and use such force as are reasonable necessary to take a person into or to keep a person in immigration detention.12 DIMA also notes that Officers also have the common law right to use reasonable force to protect themselves, the detainee, or any other person. 

    DIMA also refers to paragraph 9.2 of Migration Series Instruction MSI-234: General Detention Procedures which states:

    While use of force is permissible in self defence and the defence of others, officers should be aware that the use of greater force than necessary to secure and restrain a detainee may amount to an assault.

    DIMA has also provided a copy of GSL Operational Procedure 12.11 The Use of Force.

    I note that Paragraph 4.1.2 states that:

    The use of force can only even be a last resort and only for the purposes of maintaining safety, good order and security.  All staff should always seek to achieve the desired objective by discussion, negotiation, persuasion, or simply waiting until a  detainee is prepared to comply.  However the use of force may sometimes be required, in order to:

    • Prevent escape;
    • Prevent a detainee from injuring themselves or others;
    • Prevent a detainee doing large scale damage to property;
    • Enforce an order given by a detention services officer or a DIMA employee where the detainee, having been given every opportunity to comply, has failed to do so, and where the purposes of the order can only be effected thereafter by the use of force; and
    • Where force is the only means of expeditiously restoring good order and ensuring the safety of staff and other detainees or preventing wholesale disorder or the destruction of property.

    DIMA also refers to paragraph 6.4.7 of the IDS which states:

    Force is used as a measure of last resort and only where all other control methods have failed or have been assessed as inadequate.  Only such force as is reasonable necessary and proportionate in the particular circumstances to resolve the situation is used.

    I consider that the following principles and standards in the IDS are also relevant to this complaint:

    Standard 1.3.2 provides that:

    A secure and safe detention environment is established and maintained.

    The performance measure for this standard is:

    No instance of a detainee coming to harm as a result of risk not being identified, assessed, managed and ameliorated.

    Standard 1.4.11 provides that:

    Each detainee is treated with dignity and in a humane manner, and is accorded respect; and the individuality of each detainee is recognized and acknowledged.

    The performance measure for this standard is:

    No substantiated instance of a detainee being humiliated or treated discourteously.

    Standard 6.4.3 provides that:

    Collective, corporal, cruel, inhumane or degrading treatments and punishments are not used.

    Standard 6.5.1 provides that:

    Screening and searches of detainees are conducted according to the law, Ministerial directions, and operational orders.

    Standard 6.8.2 provides that:

    Detainees are protected from assault by other detainees, detention officers and others.

    6. CONC2ILIATION

    As the complainant had been removed from Australia and his whereabouts were unknown throughout the course of my inquiry, I formed the view that conciliation was not possible.

    7. TENTATIVE VIEW

    On 16 September 2005 I notified DIMA and GSL of my tentative views and recommendations in this matter and invited their response. Those responses are set out below in section 9. They did not challenge the tentative views that I had reached. I now go on to record my findings and recommendations. In this instance they are consistent with the tentative views that I had reached.

    8. FINDINGS

    8.1 Findings of Fact: Uncontentious Issues

    I make the following findings of fact on issues that appear to be uncontentious:

    1. Mr AV is an Indian national who was residing in Australia on a student visa.
    2. On 8 September 2004 at 2.10am Mr AV attended the Marrickville Police Station.  As a result of the expiry of his student visa, he was detained under the Migration Act 1958 and escorted to the Villawood IDC by Officers OD and OE. Mr AV was compliant with directions of those officers during the transfer.
    3. Mr AV arrived at the Villawood IDC at around 4.40am and was taken to the reception area for his induction into the Centre. Mr AV was under the influence of alcohol when he arrived at the Centre. The induction was conducted by Officers OB and OE. Mr AV was not aggressive during this process. Mr AV refused to hand over his mobile phone and officer OB called for assistance, even though officer OE thought that it was not required.
    4. Detention Operations Coordinator OA and Detention Services Officer OC arrived at 5.20am and escorted Mr AV to the holding room. While in the passageway outside the holding room there was an incident involving Mr AV and officer OC and a scuffle ensued. Force was used by the GSL officers to bring Mr AV to the ground and restrain him in a wrist lock. Officer OE was present during some of these events and applied a ‘pistol grip’ to Mr AV’s right wrist.
    5. At 5.23am Mr AV entered the holding room with his left arm outstretched behind him and his left wrist was held in a ‘pistol grip’ hold by Officer OC. Mr AV rubbed his left arm after being released from this grip, indicating that he was experiencing pain in it.
    6. Whilst in the holding room, Mr AV was searched by OA and OC and items of property were removed from him. Force was applied by OA and OC to Mr AV during this process.
    7. On 10 September 2004 Mr AV was diagnosed as having sustained a fracture to his left wrist.
    8. On 11 September 2004 Mr AV sent a written complaint addressed to the DIMIA Manager at Villawood, the Commonwealth Ombudsmen, the Australian Red Cross and the Commission.  The complaint related to his treatment by GSL officers whilst held at Villawood
    9. Mr AV was removed from Australia on or about 22 September 2004.

    8.2 Issues to be determined

    The Commission has the function of inquiring into any act or practice that may be inconsistent with or contrary to human rights, under s 11(1)(f) of the HREOC Act. In deciding whether the matters complained of fall within the terms of that section, I am required to consider two main issues:

    8.2.1 Is there an act or practice within the meaning of section 3 of the HREOC Act?

    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.

    DIMA is a federal government department, under the Minister for Immigration and Multicultural Affairs. The Migration Act 1958 gives the Minister authority to establish immigration detention centres and make regulations for the operation of detention centres, including the conduct and supervision of detainees and the powers of persons performing functions in connection with the supervision of detainees.13

    On 27 August 2003, GSL, then Group 4 Falck Global Solutions, signed a contract with DIMA, on behalf of the Commonwealth Government, to operate all Australian Immigration Detention Centres and Immigration Reception and Processing Centres.

    The acts or practices complained of relate to an unreasonable use of force against the complainant by GSL officers and I consider that the use of force constitutes an ‘act’ for the purposes of the HREOC Act. GSL is a company performing detention services under a contract with the Commonwealth and any use of force by GSL officers in the present circumstances is therefore an act done ‘on behalf of’ the Commonwealth.

    8.2.2  Are the acts or practices inconsistent with or contrary to any human right?

    Use of force causing fracture to the wrist

    The complainant alleges that on 8 September 2004 whilst speaking to a female GSL officer, a number of other GSL officers approached him and pulled him to a corner and pushed him on the ground whilst one officer held his left arm and twisted it causing a fracture to his wrist. From the evidence provided by DIMA this occurred in the passageway to the holding rooms.

    OC alleges that the complainant was escorted to the holding room by OC and OA and at a point outside the holding room doorway the complainant became aggressive towards OC, spitting at him and attempting to head-butt him.  OC states that control and restraint techniques were employed and the complainant was placed on the floor in the corridor.  OE also alleges that she heard sounds of the struggle and made her way to the holding room corridor where she observed the complainant attempt to kick OC in the leg.  The Investigation report concluded that the correct control and restraint techniques were applied to ensure compliance from the complainant after there had been some form of attempted assault by him upon OC. 

    However, consistent with the report by Mr Saxon, the CCTV then shows the complainant entering the holding room at 5.23am, he appears to be leaning forward with his left arm outstretched behind him and his left wrist held up by someone outside the door.  In his investigation report, Mr Saxon notes that it is clear that the complainant’s left wrist was being held in a ‘pistol grip’ hold by OC.  The CCTV footage then reveals the complainant grabbing his left arm after it was released by the person holding it and at a later stage whilst waiting in the holding cell the complainant appears to be rubbing his left arm. I find that the complainant was experiencing pain in his left arm after being taken to the holding room.

    The complainant’s medical assessment at 6.42am states that the complainant showed ‘no signs of post cuff application injury’. Whilst this may indicate that he had not suffered ‘post cuff application injury’ it does not prove that he had not suffered a fracture at this point.

    The complainant was examined by a doctor at 5.40pm on 9 September 2004. The medical records note:

    C/O SWELLING L WRIST LAST 2/7 TWISTED ARM 4 X/RAY L WRIST + SCAPHOID WT 69.7KG.

    The reference to 2/7 indicates that the complainant was complaining of swelling over the last two days which is consistent with the complainant’s claim that the fracture occurred on 8 September 2004.  Another GSL officer report form dated 10 September 2004 by a Registered Nurse, noted: ‘Had xray today which showed a displaced fracture of left wrist. Hurt wrist two days ago. Advised by [doctor] to transfer hospital for plastering’.

    At 12.35pm on 10 September 2004 the complainant was again examined and was observed to be moving his wrist freely and in no obvious pain. It then notes that he was complaining of being in pain ‘but not visibly’.  However, on the same day his wrist was x-rayed and he was diagnosed as having suffered ‘an undisplaced fracture of the radial articular surface in its posterior aspect’.  Mr Saxon noted that this was a small fracture to the underside of his left wrist.

    Whilst I agree with Mr Saxon’s descriptions of what the CCTV images show, I do not agree with his conclusion that the evidence does not establish, as a matter of probability, that the injury occurred whilst the complainant was being moved from the reception area to the holding room. There is nothing to suggest that the complainant had suffered an injury, or been involved in an event that might have caused the injury, before he arrived at Villawood, or whilst he was in the reception area. He made no complaint about his arm before he was escorted from the reception area, and the CCTV footage in the reception area gives no suggestion that he is suffering any pain or protecting his left arm. There is undisputed evidence that a scuffle occurred in the passageway to the holding room that resulted in the complainant being restrained on the floor, and having his right wrist grasped. The complainant’s allegations about his wrist injury are entirely consistent with it having occurred at the time when he alleges it happened. The CCTV image of him holding his left wrist as soon as it is released in the holding room is strong evidence that he was experiencing pain at that stage and in later images whilst he is alone in the holding room he is shown holding and rubbing his left arm.  Having regard to the treatment that was meted out to him in the holding room, I do not think that his failure to evidence pain in the left wrist during some movements in the holding room whilst in the presence of GSL officers indicates otherwise. His emotional state and fear are likely to have masked the degree of pain that might have been expected in calmer circumstances to have produced symptoms.

    I find that the injury to Mr AV’s wrist was sustained in the passageway outside the holding room. It is then necessary to ask whether this injury was caused by the use of unnecessary or excessive force by one or more of the GSL officers.

    The Detention Services Officers OC and OA have not provided their version of events in relation to how the complainant injured his wrist or any evidence that would discount the complainant’s allegation or provide another plausible explanation for his injury. Both OA and OC in their written incident reports state that, whilst transferring the complainant to the holding room, the complainant became aggressive towards OC and minimum force was used to restrain him. Officer OC states that reasonable force was used to restrain Mr AV outside of the holding room and he was stabilised on the floor. Another officer, OE, states that she observed the complainant attempted to kick Officer OC outside the holding room and she assisted to restrain him by holding his right arm in a ‘pistol grip’ hold. 

    Whilst there is reason from the CCTV footage to question the reliability of reports given by Officers OC and OA, the evidence from Officer OE lends significant support to the allegation that the complainant was resisting his transfer and that force was necessary to restrain him. There is also limited, but nevertheless significant evidence in the CCTV footage in the holding room that the complainant was not at all times completely docile. Having considered the evidence, I find that the application of some force was necessary to restrain the complainant.

    The complainant, in his written complaint, denies he was being non-compliant with directions or was resisting the GSL officers. However, as it has not been possible, because of his removal from Australia, to hear oral evidence from Mr AV and allow that evidence to be tested, I am of the view that I can only give limited weight to his denial.

    I have concluded that the evidence does not support a finding that the force used was excessive. How the wrist injury occurred remains uncertain. It may have been because unnecessary force was applied to his wrist, but it is also possible that, at the critical moment, the force applied was reasonably necessary. I also cannot exclude the possibility that the wrist injury occurred when the complainant fell to the ground – he may have used his arm to break his fall, and the grip to his left wrist may have been applied subsequently. In the absence of Mr AV it has not been possible to resolve this issue.

    I therefore find that the complainant’s allegations about his left wrist injury are not established. 

    Unreasonable use of force: grabbing of the throat and unauthorised search

    The CCTV footage provides clear evidence of unreasonable amounts of force against the complainant by GSL officers whilst he was in the holding room at Villawood.  These matters concern the actions of OA and OC in searching and restraining complainant.

    At one point the CCTV documents OA lunging at the complainant; his right arm is raised and grips the complainant around the throat with his hand, forcing the complainant’s head back to wall.  OA maintains hold on the complainant’s throat while OC raises right hand and extends his index finger to the complainant’s face.  OA releases his grip from the throat of the complainant and moves away from OC and the complainant. Officer OC then stands so that he is inches away from the complainant’s face and grips both lapels of the complainant’s jacket and uses force to move him back to the corner of the holding room.

    OC claims that the complainant became aggressive and he and OA applied reasonable force to restrain him. However, consistent with Mr Saxon’s observations, the CCTV images do not show that the complainant tried to assault OC or acted in an aggressive manner towards him.  Mr Saxon found that OA’s action constitutes an assault and it could not be termed reasonable force as defined within the Migration Act, IDS and OPS and is tantamount to serious misconduct. I agree fully with this conclusion, and I consider that the unreasonableness of the officers actions is increased by the fact that immediately prior to this incident the CCTV footage documents the complainant cradling his arm and displaying a posture which is clearly not aggressive.

    Mr Saxon states that the complainant should only have been subjected to a ‘pat down’ search.  The fact the OC rummages through the complainant’s clothing and removes items from his pockets actually constitutes a strip search under the Migration Act and no authorisation was obtained prior to it being done. I concur with Mr Saxon’s observations that the CCTV images show that force was used during most of the search of the complainant.  The centre’s operations procedures state that an officer must allow the detainee a reasonable period in which to voluntarily submit to the search, however there appears to be no such time given by these officers in this instance. As Mr Saxon notes, there are instances of grabbing at the detainee’s clothing, pulling of the detainee, forcibly holding him against walls and general threatening or intimidating behaviour against the detainee.

    Whilst the complainant did not suffer any injuries as a result of the above incidents, he would have experienced fear and a substantial degree of humiliation as a result of the officer’s intimidating behaviour. 

    Nowak has stated that degrading treatment in relation to Article 7 does not place importance on the severity of the treatment but rather the humiliation of the victim and the principle of proportionality. Rule 54(1) of the Standard Minimum Rules also prescribes the circumstances in which officers may resort to force and states that they may use no more force than strictly necessary.  I consider that there was no justification for the acts of bullying and intimidation by the officers.  It was unreasonable in the circumstances and clearly a violation the IDS, Code of Conduct and Operating Procedures. There is no evidence of the complainant showing any signs of non-compliance or aggression towards the officers and it does not appear that he was given any opportunity to submit to the search voluntarily and, as Mr Saxon noted, there was no authorisation for the conduct of a strip search. The officer’s behaviour and use of force was not reasonable or necessary in the circumstances.

    I therefore find that the GSL officers OA and OC used excessive and unreasonable force and engaged in intimidating behaviour towards the complainant in holding the complainant against the wall by his throat and conducting an unauthorised strip search. These acts constitute inhuman and degrading treatment and breach Mr AV’s right to be treated with humanity and inherent dignity and are therefore inconsistent with and contrary to articles 7 and 10 of the ICCPR and human rights under the HREOC Act.

    9. RECOMMENDATIONS

    Having found that the complainant’s human rights were breached while he was in the holding room, I have also considered what recommendations should be made.

    The HREOC Act does not make it unlawful to do an act that is inconsistent with or contrary to any human right. However, the Divisions of the HREOC Act under which this inquiry was conducted are directed to the elimination of breaches of human rights. Section 29 of the HREOC Act provides

    Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice is inconsistent with or contrary to any human right, the Commission:

    …..

    (b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;

    (c) may include in the notice any recommendation by the Commission 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…

    When Mr AV contacted the Commission in November 2005, he was advised of my tentative view and invited to make any submissions in relation to it. Mr AV indicated that he sought compensation of $3,000 for medical expenses relating to his broken wrist. He further indicated that he sought compensation for pain and suffering on the basis that he was scared, upset and intimidated by the actions of the officers involved in the incident in the holding room.

    On 20 December 2005 I sought submissions from DIMA and GSL on the question of compensation. DIMA did not wish to make any further submission on the issue of compensation. GSL submitted that no recommendation for the payment of compensation should be made. In particular, GSL suggested that Mr AV’s unco-operative behaviour prior to the incident, while not justifying the conduct of the officers involved, should militate against the recommendation of compensation for pain and suffering.

    9.1 Apology

    I consider that an apology is an appropriate remedy that should be considered in these circumstances, given the treatment to which I have found that the complainant was subjected whilst in the holding room. Apologies are important remedies for breaches of human rights. They, at least to some extent, alleviate the suffering of those who have been wronged. Given the nature of the breaches I have found in this case, I recommend that an apology be made in writing to him by the Secretary of DIMA on behalf of the Commonwealth.

    9.2 Compensation

    9.2.1 Medical Expenses

    For the reasons given above, I am not satisfied that the incident in the hallway which resulted in Mr AV’s wrist being injured was a breach of his human rights.  I am therefore of the view that it is not appropriate to make any recommendation for compensation related to that injury, including medical expenses for its treatment.

    9.2.2 Pain and Suffering

    I have, however, found that Mr AV’s human rights were breached when he was bullied and intimidated in the holding room. I am satisfied that the complainant experienced fear and humiliation and that it is appropriate that compensation be paid to him.

    Contrary to the submission made by GSL, it is not, in my view, appropriate to reduce this figure, or decline to recommend the payment of compensation, on the basis of any unco-operative behaviour of Mr AV prior to the incident in the holding room. The actions of the officers involved and their impact upon Mr AV are no less serious as a result of any failure by Mr AV to co-operate at an earlier point in time.

    There is no judicial guidance dealing with the assessment of recommendations for financial compensation for breaches of human rights under the HREOC Act. However, in considering the assessment of a recommendation for compensation under section 35 of the HREOC Act (relating to discrimination matters under Part II, Division 4 of the HREOC Act), the Federal Court has indicated that tort principles for the assessment of damages should be applied: Peacock v The Commonwealth (2000) 104 FCR 464 per Wilcox J at 483. I am of the view that it is the appropriate approach to take to the present matter. As such, 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 had not occurred: see also Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217 per Lockhart J at 239.

    The compensation claimed by Mr AV in respect of pain and suffering would, in tort law, be characterised as ‘non-economic loss’. There is no obvious monetary equivalent for such loss and courts therefore strive to achieve fair rather than full or perfect compensation: Sharman v Evans (1977) 138 CLR 563 at 589.

    In reaching an appropriate figure I have made considered the following factors:

    • Mr AV was scared, upset and intimidated by the incident which I have found to have been a breach of his human rights.
    • The incident was not a trivial one. It involved a physical assault on Mr AV by persons in a position of power over him and who had a duty of care in relation to him.
    • However, the incident was an isolated one and not repeated and did not result in ongoing loss or injury.
    • I have made reference, in reaching a figure, to awards for general damages in discrimination cases such as sexual harassment cases in which there has been an element of ‘pain and suffering’ but no ongoing injury: see Federal Discrimination Law 2005 (HREOC, 2005), pp 276-294.

    Taking into account all of these matters, I recommend that $4,000 be paid to Mr AV by DIMA on behalf of the Commonwealth.

    9.3 Other Recommendations

    I recommend that if the two officers involved in the incident in the holding room are still employed as Detention Services Officers they are provided with a copy of my final report in this matter.

    The absence of a CCTV camera covering the passageway between the Villawood reception area and holding rooms has also now been addressed. Therefore, I see no need for a recommendation to rectify that omission.

    I also do not consider that it is necessary for me to make any recommendations in relation to GSL operating procedures or the standards and policies which govern the way in which GSL provides detention services on behalf of DIMIA. This is not a case of inadequate procedures, but rather existing procedures, standards and codes of conduct not being followed by particular officers. The conduct of the GSL officers in question were in breach of the IDS, Code of Conduct and Operating Procedures. DIMIA has applied a sanction to GSL because DIMIA concluded that GSL officers had breached the IDS. Given the above, I do not consider it necessary to make any recommendations about operating procedures in detention centres.

    10. RESPONSE TO THE FINDINGS AND RECOMMENDATIONS

    By letter dated 13 October 2005 DIMA provided the following response to my tentative findings and recommendations:

    Article 10 (1) of the International Covenant on Civil and Political Rights (ICCPR) states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. As previously advised, DIMIA considers that the behaviour of the GSL officers breached the Immigration Detention Standards and amounted to an assault on Mr [AV]. DIMIA also considers that rummaging through Mr [AV]’s pockets constituted an illegal strip search. For these acts, DIMIA sanctioned GSL and the department agrees that this treatment amounted to a breach of Article 10 (1) of the ICCPR.

    The President recommends that should the complainant return to Australia or his whereabouts otherwise become known that an apology be made in writing to him be the Secretary of DIMIA on behalf of the Commonwealth. DIMIA concurs with the President’s view and will endeavour to provide Mr [AV] with a written apology.

    The President recommends that if the two officers involved in the incident in the holding room are still employed as Detention Service Officers they are provided with a copy of the President’s final report in this matter. The two officers are still employed by GSL and DIMIA will ensure that the final report is made available to GSL management and the two officers.

    By letter dated 26 October 2005 GSL provided the following response:

    I have noted the President’s tentative view that ‘… while in the holding room Mr AV was treated in a manner which was inconsistent with or contrary to any human right. I do not wish to present any material that would contradict this tentative view.

    GSL conducted a comprehensive, objective and rigorous investigation into the complaint made by Mr [AV], and I note that the outcomes of that process seem to form the basis of the President’s tentative view. On behalf of GSL, I express my regret for the events that occurred in the holding room. DIMIA sanctioned GSL under the provisions of the Immigration Detention Standards, and the sanction was not contested.

    The two officers involved in the incident were formally cautioned about their behaviour and both received additional training in respect of their duties and responsibilities and were subject to close supervision. One of the officers involved has since left the employment of GSL, and the other will be provided with a copy of your report, as the President has proposed in the tentative view. The heightened duty of care owed to persons in detention by all employees is reinforced throughout their training, and GSL has taken all steps to ensure that there is no repetition of such an incident.

    On 13 March 2006 I issued to the parties a Notice pursuant to section 29(2) of the HREOC Act containing my findings and recommendations and inviting a response as to the action to be taken by the respondents as a result of my findings and recommendations.

    By letter of 5 April 2006, DIMA further advised that it accepted my recommendation for the payment of compensation and that it was working as a high priority on arranging for the payment of $4,000 to Mr AV.

    DIMA also provided the Commission with a letter of apology signed by the Secretary, Andrew Metcalfe, addressed to Mr AV. This was forwarded to Mr AV by the Commission. The letter stated:

    I am writing to you on behalf of the Department of Immigration and Multicultural Affairs (DIMA) and the Commonwealth of Australia.

    I apologise for the treatment you endured and for any distress your induction at Villawood IDC on 8 September 2004 may have caused you. I acknowledge the concerns you expressed about the manner in which you were treated during this incident.

    As a result of the Department’s investigation into your complaint, GSL (Australia) Pty Ltd was sanctioned by DIMA for clear breaches of the Immigration Detention Standards.

    Once again, please know that DIMA deeply regrets the manner in which you were treated.

    I report accordingly to the Attorney-General.

    John von Doussa QC
    President
    28 April 2006

    APPENDIX A

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

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

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

    1. The functions of the Commission are:

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

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

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

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

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

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

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

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

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

    ENDNOTES

    • [1] In order to protect the privacy of the complainant, he is identified by the initials ‘AV’.
    • [2] At the time of the complaint and for much of the inquiry, the Department was named the Department of Immigration, Multicultural and Indigenous Affairs (‘DIMIA’). I have referred to ‘DIMA’ throughout this report, but some references to ‘DIMIA’ remain in correspondence which is quoted.
    • [3] In order to protect the privacy of the officers directly involved in the incident the subject of this complaint, they are identified by initials OA-OE. I note that the nature of the Commission’s human rights functions is to focus on the responsibility of the Commonwealth, rather than individuals, for acts and practices that may be inconsistent with or contrary to human rights.
    • [4] U.N Doc Human Rights Committee General Comment 20: Article 7, 10/03/92 para 2. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8…? Opendocument
    • [5] U.N. Doc. HRI\GEN\1\Rev.1 AT 33 (1994).
    • [6] Nowak M, UN Covenant on Civil and Political Rights CCPR Commentary, MP Engel, Germany, 1993, at page 186.
    • [7] Ibid, at page 188.
    • The Standard Minimum Rules were approved by the UN Economic and Social Council in 1957. They were subsequently adopted by the UN General Assembly in resolutions 2858 of 1971 and 3144 of 1983: U.N. Doc.A/COMF/611, Annex 1.
    • [8] The Body of principles were adopted by the UN General Assembly in resolution 43/173 of 9 December 1988 Anne: U.N. Doc. A/43/49 (1988).
    • [9] United Nations, Official Records of the General Assembly, Thirteenth Session, Third Committee, 16 September to 8 December 1958, pages 160-173 and 227-241.
    • [10]Human Rights Committee General Comment No 21 (1992), paragraph 5. See also Mukong v Cameroon (1994) HRC Comm No 458/1991, UN Doc CCPR/C/51/458/1991 AT para 9.3.
    • [12]Section 5(1) of the Migration Act 1958 defines ‘detain’ to mean:
      (a) take into immigration detention; or
      (b) keep, or cause to be kept, in immigration detention;
      and includes taking such action and using force as are reasonably necessary to do so.
    • [13]13. Migration Act 1958 (Cth), section 273.

    Last
    updated 15 June 2006.