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HREOC Report No.32

Report of an inquiry into a complaint made on behalf of federal prisoners detained in New South Wales correctional centres that their human rights have been breached by the decision to ban distribution of the magazine ‘Framed’

 

HREOC Report No.32

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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 Act1986 (Cth) I attach a report of my inquiry into a complaint by Ms Stacey Scheff of Justice Action on behalf of federal prisoners detained in NSW correctional centres against the State of NSW, Department of Corrective Services and the Commonwealth of Australia, Attorney-General’s Department. Justice Action alleged that the human rights of federal prisoners detained in NSW correctional centres have been breached by the decision of the Department of Corrective Services to ban distribution of the magazine ‘Framed’. I have found that the acts or practices complained of were inconsistent with or contrary to the human rights of federal prisoners detained in NSW correctional centres as provided for under article 19 of the International Covenant on Civil and Political Rights.

Yours sincerely,

John von Doussa QC
President
February 2006


Table of Contents

1. Introduction

2. Outline of the Complaints

3. Response to the Complaint

(3.1) The response from the Department
(3.2) The response from the Commonwealth
(3.3) Justice Action's replly to the Department's response
(3.4) Additional information provided to the Commission

4. Relevant Legal Framework

(4.1) The HREOC Act
(4.2) The International Covenant on Civil and Political Rights

5. Conciliation

6. Preliminary assessment leading to a tentative view

(6.1) Whether there was an act or practice for the purposes of the HREOC Act?
(6.2) Wheather the act or practice was inconsistent with or contrary to article 19(2) of the ICCPR?
(6.3) Whether the restriction was provided for by law as required by article 19(3)?
(6.4) Whether the restriction was necessary for one of the listed purposes in article 19(3)?
(6.5) Summary of my tentative view
(6.6) Tentative recommendations

7. The Section 29 Notice

(7.1) The response from the Department to my tentative view
(7.2) The response from the Department to my tentative recommendations

8. Findings

9. Recommendations

10. Action taken by the respondents as a result of the findings and recommendations

Appendix one

Endnotes


1. INTRODUCTION

This report concerns my inquiry into a complaint made to the Human Rights and Equal Opportunity Commission (‘the Commission’) by Ms Stacey Scheff of Justice Action (‘Justice Action’) on behalf of federal prisoners detained in NSW correctional centres against the State of NSW, Department of Corrective Services (‘the Department’) and the Commonwealth of Australia, Attorney-General’s Department (‘the Commonwealth’). Justice Action alleged that the human rights of federal prisoners detained in NSW correctional centres have been breached by the decision of the Department to ban distribution of the magazine ‘Framed’.

I have inquired into the complaint made by Justice Action pursuant to ss 11(1)(f) and 20(1) of the HumanRights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’).1 As a result of my inquiry, I have found that the acts or practices of the Department were inconsistent with or contrary to the human rights of federal prisoners detained in NSW correctional centres as provided for by article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’).

2. OUTLINE OF COMPLAINT

By letter dated 6 February 2004, Justice Action made a complaint to the Commission on behalf of federal prisoners detained in NSW correctional centres.

Justice Action states that it publishes the magazine ‘Framed’ and has distributed it in prisons in every State in Australia for nearly 20 years. Justice Action states that the magazine:

…is the only independent publication distributed in prisons which deals with political and legal information from the point of view of prisoners. ‘Framed’ is intended as a means of self expression for prisoners, a source of information about their human rights and the realities of life in prison. As such, it often contains information and opinions which challenge those of the [NSW] Department of Corrective Services.

Justice Action states that the Corrective Services Commissioner banned the distribution of the magazine from NSW prisons since issue 42. Subsequent to this banning, Justice Action sent three issues (43, 44 and 45) to the Department for comment prior to distribution but these have been refused distribution by the Department with no explanation given.

Justice Action alleges on behalf of federal prisoners in NSW that the act of banning the magazine constitutes a breach of article 19 of the ICCPR, and denies that any of the material in issues 43, 44 or 45 falls within the exemptions provided in article 19(3) of the ICCPR (for text of article 19 see paragraph 4.2 below). Justice Action also states:

The banning of ‘Framed’ has effectively cut off our communications with our membership and constituency in NSW. As an organisation, we depend on these communications to inform our campaigns for the human rights of prisoners. Prisoners rely on the magazine to express themselves and to inform themselves about issues which [affect] them legally and personally. As the only independent information inside prisons, our operations are effectively curtailed in our home state by the actions of the Department.

I note that in November 2002, Justice Action lodged a complaint with the Commission relating to the decision by the Department not to distribute issues 42 and 42A of ‘Framed’. On 28 January 2004, I decided not to continue to inquire into this complaint under s 20(2)(a) of the HREOC Act as I was satisfied that the act or practice in question was not inconsistent with or contrary to any human right. Therefore, the decision to ban issues 42 and 42A of ‘Framed’ has already been dealt with by the Commission and does not form part of the subject matter of this report.

3. RESPONSE TO THE COMPLAINT

3.1 The response from the Department

A response to this complaint was provided by the Department by letter dated 18 August 2004. The Department states that it has provided this response although it is unpersuaded that the Commission has jurisdiction to inquire into the complaint.

The Department states that the publication was permitted in NSW correctional centres in the past but the publication is now banned.

The Department also states that the law which contains the powers about what is to be received in NSW correctional centres is clause 48 of the Crimes (Administration of Sentences) Regulation2001 (NSW) (‘the Regulation’) which provides:

  1. An inmate may purchase:

    1. any book, newspaper or magazine, and
    2. any record, cassette or compact disk.
  2. Despite subclause (1), the governor may refuse to allow an inmate to purchase, and may confiscate, any such book, newspaper, magazine, record, cassette or compact disk if of the opinion that it contains:
    1. anything that, in the opinion of a nominated officer, is likely to prejudice the good order and security of the correctional centre, or
    2. any threatening, offensive, indecent, obscene or abusive written or pictorial matter, or
    3. any offensive, indecent or obscene article.
  3. Anything confiscated under this clause:
    1. is to be dealt with as if it had been surrendered on reception into a correctional centre, or
    2. is to be disposed of by the governor in such a manner as is reasonable in the circumstances (taking into account the nature of the material)

The Department also notes that clause 109 of the Regulation provides:

  1. The governor of a correctional centre or a nominated officer may open, inspect and read a letter or parcel sent to or by an inmate and, if it contains prohibited goods, may confiscate the letter or parcel and its contents and deal with them in accordance with the directions of the Commissioner.
  2. The inmate is to be informed of the confiscation of any letter, parcel or prohibited goods.
  3. A nominated officer may direct that any written or pictorial matter contained in a letter or parcel opened, inspected or read under this clause be copied before the letter or parcel containing the matter is delivered to the addressee.
  4. Such a direction may be given only if the nominated officer is of the opinion that the written or pictorial matter to be copied:
    1. contains anything likely to prejudice the good order and security of any correctional centre, or
    2. is threatening, offensive, indecent, obscene or abusive.
  5. This clause does not apply to a letter or parcel addressed to, or received from, an exempt body or exempt person…

Clause 282A of the Regulation provides:

If the Commissioner considers it necessary to do so, the Commissioner may exercise any function that, under this Regulation, may be exercised by an officer of the Department.

The Department states that ‘Framed’ is likely to prejudice the good order and security of correctional centres and is offensive to the rights and reputation of correctional staff and in particular to certain staff mentioned by name and as such article 19(3) of the ICCPR applies. The Department states that the Senior Assistant Commissioner Inmate and Custodial Services makes the decision to ban publications from centres.

The Department states that Justice Action was warned that its publication would be banned if it did not refrain from making untrue, prejudicial and offensive assertions in the articles contained in the publication. The Department states that article 19(3) applies and that Justice Action has failed to have regard to its ‘special duties and responsibilities’ in ensuring that its publication did not offend against the rights and reputations of correctional staff and to ensure that the good order and security of correctional centres is not compromised.

The Department states that correctional centres are difficult places at the best of times without deliberately adding to the stress that both staff and prisoners experience. The Department states that a publication which contains untruthful and inaccurate ‘information’ about correctional issues has the potential to cause prisoners to feel anger and resentment against perceived wrongs and to take that anger and resentment out on staff. The Department states that it has a duty of care to all staff as well as prisoners and must take all reasonable steps to prevent or minimise any risk to their safety. The Department states that banning a publication ‘whose primary purpose appears to be to inflame tensions that naturally occur in day to day prison life is considered to be one such reasonable step’.

3.2 The response from the Commonwealth

A response to this complaint was provided by the Commonwealth by letter dated 17 June 2005. The Commonwealth submits that the Commission does not have jurisdiction pursuant to s 11(1)(f) of the HREOC Act to inquire into the acts or practices of the NSW authorities in the banning of the distribution of ‘Framed’ magazine since issue 42 to prisoners in NSW.

The Commonwealth submits that s 19A of the Crimes Act 1914 (Cth) provides that a federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender. The application of State or Territory laws to a federal prisoner occurs under the terms of the State sentencing laws and does not involve applying those laws of the Commonwealth for the purposes of the HREOC Act.

The basis on which federal prisoners are held in State prisons is s 120 of the Constitution. That section states:

Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

The Commonwealth submits that the day to day administration of conditions for federal prisoners is governed by the legislation and administrative practice of the State or Territory in which they are detained and the Commonwealth has no power to direct State or Territory authorities acting under State or Territory laws. The federal prisoners in custody in NSW are detained pursuant to the Crimes (Administration of Sentence) Act 1999 (NSW). This Act covers areas such as segregation, leave of absence, prison discipline, classification, staffing of correctional centres and access to medical services.

Section 79 of this Act also contains a regulation making power which provides for:

  • the management, control, administration, supervision and inspection of correctional centres and correctional complexes; and
  • the seizure, forfeiture and disposal of property brought into a correctional centre in contravention of the Act.

The Commonwealth states that it does not have jurisdiction over the administration of prisoners in NSW correctional facilities and accordingly, the Commonwealth is not in a position to dictate to NSW what publications are made available to prisoners.

3.3 Justice Action’s reply to the Department’s response

Justice Action provided comments on the Department’s response by letter dated 20 September 2004. Justice Action states that the blanket banning of ‘Framed’ is ‘against all principles of political rights to ban a publication pre-emptively because of something that might be said.’ Justice Action also states that it has always given the Department the opportunity to respond to all articles in all issues of the magazine prior to publication so that they may correct any inaccuracies or object to any articles that they believe may jeopardise the good order and security of a prison. Justice Action states that the legislation quoted by the Department does not give it the power to confiscate or ban a publication in perpetuity but only on a case by case basis. Justice Action states that there was, for example, an article in The Sydney Morning Herald that the Commissioner took offence to and ‘most probably prohibited from being distributed to prisoners’ but has not banned The Sydney Morning Herald from prisons.

Justice Action also notes that the Department’s claim that the primary purpose of the magazine is to ‘inflame tensions’ in the prisons is inaccurate. Justice Action states that the primary purpose of the magazine is to give prisoners an independent voice and expression, which it believes acts to reduce the tensions that occur as a result of imprisonment. Justice Action also notes that NSW is the only State or Territory which considers the magazine to be a possible threat to good order and security of prisons. It also noted that a similar publication in the United Kingdom was produced as a result of an inquiry into prison riots in 1989 and that this publication is critical of the United Kingdom Prison Service and the Home Office, but it is published and released in prisons after the articles and letters are put to the appropriate office for response.

By letter dated 20 December 2004, Justice Action provided copies of letters from all States and the Northern Territory to Justice Action approving the distribution of ‘Framed’. Further, it provided a copy of a letter dated 12 December 2002 to Justice Action from the Office of the Commissioner for Corrective Services that stated that ‘Framed’ ‘will no longer be distributed within correctional centres as many editions of the magazine have been inaccurate, provocative and defamatory.’

3.4 Additional information provided to the Commission

The Commission was provided with copies of issues 43, 44, 45, 46 and 47 of ‘Framed’ as part of this inquiry. Following is a table that summarises, firstly, all the articles relating to NSW prisons and, secondly, the articles relating to issues of general interest and that may relate to prisons in jurisdictions other than NSW.

Issue

Article

Subject matter

Issue 43 December 2002

‘Coordinator’s Report’ (Inspector General’s Reports, Are You Innocent?) p 2

Discussed in brief the Inspector General’s report to the Minster that has been tabled in Parliament and that the NSW Government appointed someone to head its Innocence Panel.

 

‘Updates’ p 4

Discussed the NSW Parliament passing a law to prevent the payment of any form of compensation to prisoners or ex-prisoners in cases where the Dept has breached their privacy, and whether the bill was intended to limit the scrutiny of the Dept. Also discussed the ending of the presumption of innocence in the Bail Act amendments and an inquiry by the NSW Legislative Council into the appointment of Cmr Woodham and others to high positions in the Dept. Also discussed an ICAC inquiry and said that “Woodham had advised prison governors not to circulate [material pertaining to the ICAC inquiry]. Since the inquiry related particularly to him, maybe we shouldn’t have been surprised at this”. Also refers to ‘Framed’ 42 and 42A not being released in NSW prisons and notes also complete ban.

 

‘At the Minister’s Pleasure – the case of Michael Kelly’ p 7

Discussion of a prisoner who has been classified as a forensic patient under the Mental Health Act and is in indeterminate detention.

 

‘Eventually it had to happen’

p 9

Article by transgender woman and ex-prisoner Anna Lawarik on the issue of transgender women in NSW prisons.

 

‘Mates Write’

p 10

Extracts of letters from prisoners in NSW correctional centres. Issues included access to legal information, medical care, assault, solitary confinement, urine testing, inmate’s property and food.

Other articles

‘Police State Looms’

Article about federal and State anti-terrorism legislation.

 

‘Redemption Songs’

Article about a conference in Nigeria about prisons.

 

‘Sentenced for Life’

Article about a woman suffering criminal record discrimination after serving her sentence

 

‘Yer in Jail Now, Y’havent Got Any Rights’

Article on the Universal Declaration of Human Rights.

Issue 44 March 2003

Election special about the NSW Elections in 2003 – ‘How to Vote’

Authorised submissions by most political parties contesting the election about their policies in relation to prisons and prisoners.

Issue 45 October 2003

‘Communication – The Key’ p 1

Article discussing freedom of communication. Mention of the NSW High Risk Management Unit at Goulburn (HRMU). Discussion of NSW banning Issue 44 because the Department believed it was inappropriate to distribute political material. Also discussed previous complaint to HREOC, stated Cmr Woodham wrong in not providing information to HREOC. Also discussed Minister Hatzistergos who had refused to discuss issues with Justice Action, stating it’s not a legitimate advocacy group.

 

‘Inspector General Goes’

p 2

Mentions that the position of Inspector General of Prisons had been removed and the functions transferred to the Ombudsman.

 

‘Dear Mr Hatzistergos…Re:

High Risk Management Unit (HRMU) Inspections’

pp 4-6

Copy of a letter sent from Justice Action to the Minister in relation to the conditions in the HRMU. It contained a request for an independent inspection team to examine the HRMU at Goulburn. Letter discussed possible alternatives and past high security prisons and units. Footnote states that Minister did not reply to the letter but told ABC radio that was not going to happen.

 

‘From the inside’ p 7

Extracts of letters from prisoners and their families to Justice Action, some from NSW.

Other Articles

‘The Best Mentors Have Been There’

Article about Justice Action providing mentors for prisoners and ex-prisoners.

 

‘International Prisoners Justice Day 2003’

Article about the celebrations of International Prisoners Justice Day 2003.

Issue 46 March 2004

‘Redress Roundabout’

pp 1, 6, 7

Discussed avenues available to prisoners, particularly in NSW, to have grievances heard and addressed. Discussed various matters brought to NSW Ombudsman, HCCC, HREOC and matters not resolved in complainants’ favour.

 

‘NSW Prison System a Tragedy’ p 2

A summary of a report by the NSW Council of Social Services which stated that NSW prison system was a “tragedy” – summary of statistics and facts from NCOSS.

 

‘To whom it may concern – men of the hole speak out’ p 9

Letter from the prisoners of HRMU outlining their concerns about the conditions in the HRMU.

 

‘What slight bit of good is all this doing?’ p11

Article by an inmate on periodic detention, Mr Dave Burgess, outlining his experience in Tomago Correctional Centre.

Other Articles

‘Its about the Women’

Article about Deb Killroy, founder of Sisters Inside.

 

‘Mentors Hit the Road in Turbo’

Article about the Justice Action mentoring scheme.

 

 

‘For TJ’

Article about the death of TJ Hickey in Redfern.

 

‘The Old Dart Crumbling’

Article about the UK prison system.

 

‘The Fight Goes On’

Article about the anniversary of the Battle of Vinegar Hill.

 

‘Question Time’

Joke about George W Bush.

Issue 47 July 2004

‘Shining a light on the Hole’ p 9

Article re the HRMU, updating on previous discussions in Framed and various organisations raising concerns such as the Bar Associate of NSW, UNSW Council for Civil Liberties and Green and Democrat members of Parliament.

 

‘Life at Lithgow: Bad for Your Health’ p 11

Article about the diet provided at Lithgow Correctional Centre. Discussion about processed food being provided which it is claimed is adversely affecting the health of prisoners.

 

‘…and bad for your teeth’ p 11

Letter from an inmate at Lithgow outlining his difficulty with getting adequate dental care.

Other Articles

‘From Texas to Abu Ghraib and from Guantanamo to Goulburn – Secrecy Breeds Abuse’

Article about the abuse of prisoners overseas and the lack of scrutiny of detention facilities.

 

 

‘Inquest Starting’

Article about the inquest into the death of TJ Hickey.

 

‘Peace Hero Released but not Freed’

Article about Mordechai Vanunu.

 

‘More Prisoners Lose Vote’

Article about federal Parliament disenfranchising prisoners.

 

‘Legendary Activist Dies at 33’

Article about the death of an activist.

 

‘The Importance of Scrutiny’

Article about the review mechanisms available in Australia and the Optional Protocol to the Convention Against Torture.

 

‘Maintaining the Rage in the West’

Article about the WA prison system.

 

‘ South Africa’s Criminal Justice System: A Very Long Walk to Freedom’

Article about South Africa’s prison system.

 

‘Two or 100 Rats in a Cage – A Human Rights Approach’

A review of a book about human rights and prison management.

 

‘Touch’

Poem by South African human rights activist Hugh Lewin

 

‘The Same Rights as Other People’

Interview with a disability advocate about intellectually disabled people in prison.

 

‘Justice Action Action’

Article about Justice Action’s activities.

4. RELEVANT LEGAL FRAMEWORK

4.1 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 is made to it in writing alleging such an act or practice. Section 3 of the HREOC Act defines ‘act’ as follows:

act means an act done:

  1. by or on behalf of the Commonwealth or an authority of the Commonwealth;
  2. under an enactment;
  3. wholly within a Territory; or
  4. partly within a Territory, to the extent to which the act was done within a Territory.

The word ‘practice’ is given a corresponding meaning by s 3.

The expression ‘human rights’ is also defined in s 3, and includes the rights and freedoms recognised in the ICCPR which is set out in Schedule 2 to the HREOC Act.

In the course of this inquiry, the Department and the Commonwealth raised the issue of the Commission’s jurisdiction to inquire into this complaint. In particular, the Commonwealth submitted that the Commission does not have jurisdiction to inquire into the acts or practices of NSW authorities in banning ‘Framed’ as:

  • States are required by s 120 of the Constitution to make provision for the holding of federal prisoners;
  • section 19A of the Crimes Act 1914 (Cth) provides that a federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender; and
  • the day to day administration of conditions for federal prisoners is governed by the legislation and administrative practices of the State or Territory in which they are detained and the Commonwealth has no power to direct State or Territory authorities.

I have carefully considered these submissions and, for the following reasons, I have found that the Commission does have the jurisdiction to inquire into this matter concerning federal prisoners in NSW correctional centres.

Although s 120 of the Constitution imposes an obligation on States to provide for the detention of Commonwealth prisoners, the High Court has generally taken the view that there has been a choice made by the Commonwealth since federation to administer the criminal justice system in a way which produces uniformity within each State and Territory for all offenders whether they are State or federal.2

Since 1990, Part 1B of the Crimes Act 1914 (Cth) has provided legislative guidance in the sentencing of federal offenders. Despite this guidance, it is clear that once a federal offender is sentenced to a term of imprisonment, State laws mainly regulate treatment and conditions of imprisonment, see for example the Crimes (Administration of Sentences Act) 1999 (NSW). However, I do not think that it is correct to assert that State or Territory law alone controls treatment and conditions of imprisonment. For example, s 16D(2) of the Crimes Act 1914 (Cth) provides: ‘A person serving a federal sentence must not be subjected to any form of corporal punishment.’

Section 18(2) of the Crimes Act 1914 (Cth) regulates, in part, the kind of prison to which a federal offender can be sent. Section 19A of this Act authorises the transfer of prisoners within a State or Territory prison system.

Persons prosecuted, convicted and sentenced under Commonwealth law are invariably described in those laws as ‘federal offenders’ or otherwise given a nomenclature which identifies them separately from persons whose incarceration results from an application of State or Territory law.

The Commonwealth Parliament has chosen to create and maintain a federal criminal justice process, and I consider that this process is maintained and enforced in the interests of and for the benefit of the Commonwealth. Additionally, the ‘constitutionally sanctioned expediency’3 of the Commonwealth using the State or Territory prison system also exists for the benefit, and in the interests, of the Commonwealth.

The subject matter of the HREOC Act is the protection and enforcement of human rights and it is appropriate that the provisions are construed beneficially.4 Section 10A(1) of the HREOC Act imposes a duty on the Commission to ensure that the functions are performed ‘efficiently and with the greatest possible benefit to the people of Australia’. The imposition of such a duty suggests that the Commission’s functions should be given a relatively wide construction and one that enhances the Commission’s ability to perform this duty rather than frustrates or inhibits it.

Section 11(1)(f) of the HREOC Act provides that one of the Commission’s functions is to inquire into any act or practice that may be inconsistent with or contrary to any human right. Section 20 of the HREOC Act sets out the circumstances in which the Commission can perform its inquiry function under s 11(1)(f) of the HREOC Act. The provisions of ss 20(6)-(8) of the HREOC Act deal with entitlements of persons held ‘in custody’ to be provided with facilities to make written complaints and, on their face, contemplate those entitlements extending to persons held in custody in States and Territories. As the HREOC Act only relates to acts done by or on behalf of the Commonwealth, it is difficult to see to what these subsections apply if they are not construed as applying to federal prisoners and to persons held in custody pursuant to Commonwealth laws.

I consider that the phrase ‘on behalf of’ in s 3 of the HREOC Act does not have a strict legal meaning and it does not necessarily imply a relationship of agency. The phrase has been held by the High Court to mean ‘for the purposes of, as an instrument of, or for the benefit and in the interest of the Commonwealth’.5 I consider that to place outside the reach of the Commission’s inquiry functions those who act in the interests of, or for the benefit of, the Commonwealth because they are not in law officers or agents of the Commonwealth would be to adopt a construction that fetters the Commission’s functions in a way that the terms of the HREOC Act do not appear to contemplate.

I consider that the detention of federal prisoners is entirely dependant on the authority from a Commonwealth law, and the application of State or Territory law concerning conditions of imprisonment for federal prisoners also depends on authority from a Commonwealth law. The holding of federal prisoners in State prisons and subject to State and Territory detention regimes are acts or practices done in the interests of the Commonwealth and for the benefit of the Commonwealth.

I am of the view that a wide and inclusive construction of the law is consistent with the supervision and maintenance of Australia’s obligations under the ICCPR. A narrow construction restricts the ability of the Commission to inquire into complaints about, or potential breaches of, human rights. This may lead to a State party to the ICCPR being able to avoid scrutiny of compliance with its obligations by contracting out of Commonwealth activities and functions. The argument that the Commonwealth has no control over the day to day administration of conditions for federal prisoners proceeds in my opinion on a false assumption, namely, that the Commonwealth cannot control treatment and conditions. To the contrary, the Commonwealth Parliament has simply made legislative choices about the level of control and supervision that it will exercise. Ultimately, the authority to detain federal prisoners is sourced in Commonwealth law. The closeness of the Commonwealth’s regulation of the conditions and treatment of federal prisoners detained in State or Territory correctional facilities is a matter of policy and choice, not legislative or executive capacity.

For these reasons I consider that decisions made by State or Territory correctional authorities concerning the treatment and conditions of federal prisoners are being done on behalf of the Commonwealth and therefore come within the Commission’s jurisdiction under s 11(1)(f) of the HREOC Act.

4.2 The International Covenant on Civil and Political Rights

Article 19(2) of the ICCPR provides:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Although article 19(2) of the ICCPR broadly states that everyone has the right to freedom of expression, this right is not unfettered and party States may enact laws that place limits on this civil and political right. Article 19(3) of the ICCPR states that the exercise of this right may be subject to certain restrictions and sets out how these restrictions operate. Article 19(3) provides:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

  1. for the respect of the rights or reputation of others;
  2. for the protection of national security or of public order (ordre public), or of public health or morals.

5. CONCILIATION

In accordance with s 11(f)(i) of the HREOC Act, the Commission endeavoured without success to conciliate this complaint.

6. PRELIMINARY ASSESSMENT LEADING TO A TENTATIVE VIEW

In accordance with the usual practice in reporting on an inquiry into a complaint made under the HREOC Act that an act or practice is inconsistent with or contrary to any human right, I made a preliminary assessment of the available information. I formed a tentative view that the act or practice of the Department was inconsistent with or contrary to the human rights of federal prisoners within NSW correctional centres.

My preliminary assessment and tentative view was as follows.

6.1 Whether there was an act or practice for the purposes of the HREOC Act?

The act complained of was the banning of the publication ‘Framed’ from distribution in NSW correctional centres. Justice Action was notified in writing of this ban on 12 December 2002 by a letter from Mr Peter Peters, Executive Director, Office of the Commissioner. In this letter Mr Peters advised as follows:

The Department of Corrective Services does not recognise Justice Action as an advocate on correctional centre issues.

Accordingly, I have taken the decision that Framed will no longer be distributed within correctional centres as many editions of the magazine have been inaccurate, provocative and defamatory. This not only has the potential to lead to conflict between inmates and custodial officers, but also reflects unfairly on professionalism, commitment and morale of all staff.

The Department’s duty of care to officers and inmates necessitates that appropriate action must be taken to stop all deliberate attempts to create disharmony and conflict within the correctional system.

Since this time, Justice Action sent issues including 43, 44 and 45 to the Department for comment before distribution. These issues were not distributed to prisoners in NSW correctional centres. The ban continues.

As outlined above, the provisions of the HREOC Act that relate to human rights require that the subject matter of the complaint arises from an act or practice of the Commonwealth or someone acting on behalf of the Commonwealth.

In the present case the acts in question were done by the Department and its Office of the Commissioner. For the reasons outlined above, I considered that the holding of federal prisoners in State correctional facilities and decisions made by officers of the Department about their treatment, conditions and day to day administration, such as what publications are approved for distribution, constituted acts or practices which were done in the interest of, or for the benefit of, the Commonwealth.

I formed the view that the decision by the Department to ban ‘Framed’ from distribution in NSW correctional centres was a decision about the administration of conditions for federal prisoners. Therefore, I considered that the imposition of the ban by the Department was an act done on behalf of the Commonwealth and accordingly it fell within the definition of ‘act’ in s 3(1) of the HREOC Act.

The main issues to consider in this matter were:

  1. Whether the actions of the Department in banning the publication ‘Framed’ from NSW correctional centres on 12 December 2002 restricted the freedom of expression of federal prisoners in NSW correctional centres.
  2. If so, whether that restriction come within the limitations contained in article 19(3) of the ICCPR.

6.2 Whether the act or practice was inconsistent with or contrary to article 19(2) of the ICCPR?

Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression, including the right, inter alia, to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print. In this matter, the Department has banned the distribution of the magazine ‘Framed’ in NSW Correctional centres. This means that federal prisoners in these correctional centres are unable to receive this publication containing information in writing which may be of interest to them. Justice Action submits that a main purpose of ‘Framed’ is to promote the participation of prisoners in public debate and politics in relation to issues around prisons. In particular, I note the publication contains information which is of relevance to prisoners as citizens and prisoners, such as the conditions in prisons and the treatment of prisoners, the rights of prisoners and grievance procedures, election issues and prisoner’s voting rights, inquiries about law reform and the relevance of these inquiries to prisoners and the difficulties faced by prisoners after their release. The prohibition of ‘Framed’ means that prisoners do not have access to this information.

In the circumstances, I formed the view that the ban on the distribution of ‘Framed’ in NSW correctional centres was inconsistent with the freedom to receive information of all kinds contained in article 19(2) of the ICCPR.

However, it was also necessary to consider whether any limitation in article 19(3) of the ICCPR applied in this matter.

6.3 Whether the restriction was provided for by law as required by article 19(3)?

The Department claims that the restriction is provided for by law.

The Human Rights Committee has not so far expanded upon the requirement that article 19 restrictions be ‘provided by law’ but in considering other ICCPR guarantees it has stated that the limitation must be sufficiently delineated in the State’s law which can include statutory law, the law as interpreted by the municipal judiciary and may include the law of parliamentary privilege.6

The Department submits that the restriction on freedom to receive information is provided for in statute. The Department states that the restriction is provided for in Clause 48 of the Regulation and in particular sub-clause 48(2). Clauses 48(1) and (2) provide as follows:

  1. An inmate may purchase:

    1. any book, newspaper or magazine, and
    2. any record, cassette or compact disk.
  2. Despite subclause (1), the governor may refuse to allow an inmate to purchase, and may confiscate, any such book, newspaper, magazine, record, cassette or compact disk if of the opinion that it contains:
    1. anything that, in the opinion of a nominated officer, is likely to prejudice the good order and security of the correctional centre; or
    2. any threatening, offensive, indecent, obscene or abusive written or pictorial matter; or
    3. any offensive, indecent or obscene article.

I considered that the banning of ‘Framed’ (which is a free publication for prisoners) fell outside the power conferred by Clause 48 of the Regulation. The wording of Clause 48 is clear. Clause 48(1) provides that inmates may purchase any books, newspapers or magazines. Clause 48(2) qualifies this provision by giving the governor the power to refuse to allow an inmate to purchase or to confiscate any such book, newspaper of magazine in certain prescribed circumstances. In my view, the phrase ‘confiscate any such book’ refers to a book an inmate has purchased. ‘Purchase’ is not defined in the Regulations. However, ‘purchase’ is defined in the Butterworths Australian Encyclopaedic Legal Dictionary as: ‘to acquire by way of bargain and sale for money or other valuable consideration’.7 Further, ‘purchase’ is defined in the Concise Oxford Dictionary and understood generally to mean ‘buying; money - price to be paid’. As prisoners in this particular case would not be purchasing the magazine ‘Framed’ but rather it would be sent to them for free either individually through the post or made available to them in the prison library, they could not be said to be involved in the purchase of a magazine and therefore Clause 48 would not apply.

Clause 109 of the Regulation provides that the governor of a correctional centre or a nominated officer may ‘open, inspect and read a letter or parcel sent to or by an inmate and, if it contains ‘prohibited goods’, may confiscate the letter or parcel and its contents and deal with them in accordance with the directions of the Commissioner’. The Department has submitted that ‘Framed’ is likely to prejudice the good order and security of correctional centres. I understand that this opinion is based on the Department’s consideration of earlier issues rather than the issues or editions the subject of this complaint (Numbers 43, 44 and 45).

Prohibited goods’are defined at Schedule 99 of the Regulation to mean, inter alia:

(b) anything that, in the opinion of a nominated officer, is likely to prejudice the good order and security of a correctional centre;

Clause 109 when read with the definition of prohibited goods, contemplates that the officer is required first to inspect the goods in order to form the opinion as to whether the goods are prohibited goods as defined in the Regulation.

I formed the view that Clause 109(1) did not give the Department the power to ban the publication ‘Framed’ from distribution in correctional centres generally and on an ongoing basis, in the absence of any inspection of the individual editions as they were sent to inmates. In my view, a general ban was ultra vires the power conferred by clause 109(1). Clause 109(1) requires the officer to determine whether the letter or parcel contains prohibited goods. An officer is only authorised by clause 109 to confiscate a parcel if it contains prohibited goods.

However, even if the restriction on the rights in article 19(2) is provided for by law, it also must be necessary for one of the listed purposes.

6.4 Whether the restriction was necessary for one of the listed purposes in article 19(3)?

The relevant listed purposes, as claimed by the Department, are (a) the rights or reputation of others and (b) the protection of public order (ordre public).

The Human Rights Committee in General Comment 10 stated that ‘when a State party imposes certain restrictions on the exercise of freedom of expression, they may not put in jeopardy the right itself.’ The Human Rights Committee has also confirmed that the word ‘necessary’ imports an element of proportionality into article 19(3): the law must be appropriate and adapted to achieving one of the enumerated ends and it must be constrained by a principal of proportionality. The Human Rights Committee in the same case also stated that limitations must be tightly constrained by a principle of proportionality in order to prevent the destruction of the right.8

In relation to the grounds under which limitations are allowed, the Human Rights Committee has been reluctant to allow restrictions.9 The limitations that the Department are claiming in this matter are the rights and reputations of others and public order.

(a) Rights and reputations of others

Article 19(3) provides for restrictions on freedom of expression and information to protect the rights and reputations of others. Article 19(3) allows laws to protect against intentional infringement on honour and reputation by untrue assertions. In particular, it allows laws in relation to defamation and contempt of court, as well as preventing abuse of power by private media interests who may have control of a large share of the media.10

The Department claims that the rights and reputations of others are infringed by the publication of ‘Framed’ and so article 19(3) applies. The Department states that the magazine ‘is offensive to the rights and reputation of correctional staff and in particular to certain staff mentioned by name.’

I closely examined the text of the articles in ‘Framed’ in issues 43 to 47. I formed the view that, contrary to the Department’s submissions, there were no officers who worked in the correctional centres mentioned by name or even in a manner that they could be identified in any of the issues canvassed. The Ministers, formerly John Avery and currently John Hatzistergos, were mentioned quite frequently, but I did not consider that the mention of them was made in a way that could affect their rights or reputations. Governments and ministers in a democracy should be open to scrutiny and criticism by the public.11 It is fundamental to the rights contained in article 19(2) that a person be able to express their views and also receive information of all kinds - in particular in relation to politics and government. The comments about the ministers were all made in ‘Framed’ in the context of the government’s management of and policies towards correctional centres. Prisoners have an obvious interest in government policy in relation to the management of prisoners. The other people mentioned by name were the Commissioner Ron Woodham and the Acting Deputy Commissioner Klok. The reference to the latter refers to his decision to ban ‘Framed’ from NSW prisons, which I considered a reasonable thing to mention that does not adversely impact upon his rights and reputation.

In relation to Commissioner Woodham, all (but one) of the references were in relation to his role as Commissioner in an administrative sense or in relation to the banning of ‘Framed’. The one article that could impact upon his reputation was in Issue 43 which discussed the ICAC inquiry and seemed to imply that the Commissioner was trying to stop prisoners from making submissions to protect himself. This may have affected the Commissioner’s reputation, but was the banning of the magazine a proportionate response to this article? I note that Justice Action was not given an opportunity to edit or rewrite this article and I formed the view that the ban of the magazine was not a proportionate reaction to the contents of that article. I formed the view that, if the magazine was banned because of this article in Issue 43, this was not proportionate or reasonable in the circumstances and the ban could not be justified on the basis of this comment about Commissioner Woodham.

I formed the view that the Department had not shown that banning ‘Framed’ was necessary to protect the rights and reputation of Commissioner Woodham or any other person. I considered that banning ‘Framed’ was a disproportionate response to concerns about the rights and reputations of others as it could not be known whether any future articles would offend the reputation of Commissioner Woodham or any other person. The Department has banned the publication without considering each issue on its merits and whether those issues would affect the rights and reputations of its staff. I formed the view that this article 19(3) limitation was not made out as the complete banning of ‘Framed’ was not necessary for the rights and reputations of Commissioner Woodham or any other person.

(b) Public order

‘Public order’ may be defined as the sum of rules which ensure the peaceful and effective functioning of society. The limitation for the purpose of the protection of public order would include prohibitions on speech which may incite crime, violence or mass panic. The prevention of disorder and crime is contained in the concept of ordre public and may include the limitation on freedom of information to prisoners, but as ordre public may otherwise lead to a complete undermining of freedom of expression and information, these restrictions are permissible only when they are absolutely necessary to prevent crime and disorder in prison.12

The Department claims that the limitation of public order applies, as the magazine ‘Framed’ undermines the good order and security of correctional centres. The Department claims that a publication which contains untruthful and inaccurate information about correctional issues ‘has the potential to cause prisoners to feel anger and resentment against perceived wrongs and to take out that anger and resentment on staff.’ The Department states that it has a duty of care to all staff as well as prisoners and must take all reasonable steps to prevent or minimise any risk to their safety.

I note, however, that all other State correctional systems in Australia allow the magazine to be either distributed to individual prisoners or placed in the library of the institution so that prisoners can have access to the magazine. In Victoria, the Northern Territory, Tasmania, South Australia and Western Australia the magazine is placed in prison libraries. In Queensland the magazine is sent to individual prisoners who are subscribers to the magazine. These States and the Northern Territory have all retained the right to withhold any articles that they consider contrary to the good order and security of their prisons, as with the usual censoring procedures in each jurisdiction. Thus, the established practice in correctional institutions across the country is contrary to the Department’s claim that it is necessary to ban ‘Framed’ completely for reasons of public order. In fact, it might be said that giving the prisoners an opportunity to express themselves and read articles of interest to them may act as a valve that allows concerns to be aired in a more peaceful and effective manner than other ways. I note also Justice Action’s submissions in relation to the experience in the United Kingdom when it was decided to introduce such a publication to allow prisoners to express themselves in a way to try to prevent riots.

I formed the view that the prohibition of the magazine from NSW correctional facilities was a disproportionate response to the stated concerns of the Department. I considered that the articles in issues 43 to 47 of ‘Framed’ largely addressed either legal issues, accounts of life in prison from the prisoners, or reports of actions by Justice Action, voting rights and election issues, law reform and prison reform, inquiries into the management of prisons, articles about the life of prisoners after they are released, or discussions about issues of politics of particular interest to prisoners, such as the laws dealing with terrorism or the inquest into the death of TJ Hickey. Other articles dealt with prisoners with intellectual disabilities and issues of how prisoners can have grievances heard by various government bodies. The opinions expressed, while not perhaps agreeing with the Department’s policies or position on issues including the governance of prisons or law and order, were not, in my view, likely to have the effect of causing crime and disorder in NSW prisons and so disrupting public order.

I formed the view that the complete prohibition on the magazine was not necessary for public order. I formed this view particularly because what was in place was a complete ban, rather than the individual consideration of each issue on its merits and whether it would have had an adverse impact on the security of correctional centres. I also considered that it would be possible to meet the Department’s concerns in ways that were less restrictive of the rights of federal prisoners, such as censoring particular articles, banning individual issues where the content was not consistent with public order, or liaising with Justice Action to edit the particular articles. The Department has taken none of these steps and it informed Justice Action that it was not prepared to do so.

6.5 Summary of my tentative view

For the reasons set out above, I formed the tentative view that the decision by the Department to ban the distribution of the publication ‘Framed’ in NSW correctional centres was inconsistent with the rights of federal prisoners in NSW correctional centres to freedom of expression under article 19 of the ICCPR. This ban has meant that those prisoners are unable to receive information which is relevant to them. I formed the view that the ban was not necessary to achieve the purposes listed in article 19(3) of the ICCPR, relevantly, to protect public order or the rights or reputations of others. I therefore considered that the ban constituted a breach of article 19 of the ICCPR and was therefore inconsistent with or contrary to human rights under the HREOC Act.

6.6 Tentative recommendations

Having come to the tentative view that the decision by the Department to ban ‘Framed’ was inconsistent with or contrary to human rights under the HREOC Act, I also considered what recommendations, if any, should be made.

Section 29(2) of the HREOC Act expressly provides that, where an act or practice is found to be inconsistent with or contrary to any human right, the Commission may make such recommendations, including compensation, as it considers appropriate:

(2) 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:

  1. may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
  2. may include in the notice any recommendation by the Commission for either or both of the following:
    1. 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;
    2. the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

My tentative recommendations were as follows:

  1. The Commissioner of Corrective Services allow the editions of ‘Framed’ the subject of this complaint (No. 43, 44 and 45) to be sent out by Justice Action to federal prisoners detained in New South Wales correctional centres.
  2. The Commissioner of Corrective Services remove the ban on the distribution of the publication ‘Framed’ to federal prisoners detained in New South Wales correctional centres.
  3. Any decision to restrict or prevent distribution of an edition of ‘Framed’ under the Crimes (Administration of Sentences) Regulation 2001 only be made once that particular edition has been considered by the Commissioner of Corrective Services or a nominated officer and then as is necessary:
    1. for the respect of the rights or reputations of others;
    2. for the protection of national security or of public order (ordre public), or of public health or morals.

7. THE SECTION 29 NOTICE

On 26 August 2005, in accordance with s 29 of the HREOC Act, notice of my tentative view was given to the Department and to the Commonwealth and they were invited to make further submissions orally or in writing or both. As a matter of procedural fairness, Justice Action was also provided with a copy of the tentative view and invited to participate in this process.

On 11 November 2005, I provided Justice Action with the opportunity to make submissions in relation to the tentative recommendations. On 15 and 16 December 2005, I provided the Commonwealth and the Department respectively with the opportunity to make submissions in relation to the tentative recommendations.

7.1 The response from the Department to my tentative view

By letter dated 27 September 2005, the Department provided a response stating that it profoundly disagreed with the tentative view, and reiterating its earlier submission that the banning of ‘Framed’ was authorised by law under the Regulation. The Department went on to make the following offer to resolve the complaint:

I am prepared to allow Justice Action to provide a copy of the publication “Framed” to any federal inmate who requests it on the proviso that the publication is first checked by my nominated officer to ensure that it does not contain anything that, in the opinion of the nominated officer, is likely to prejudice the good order and security of a correctional centre, or any threatening, offensive, indecent, obscene or abusive written or pictorial matter, or any offensive, indecent or obscene article. My decision applies only to federal inmates and only to a specific request being made by a federal inmate to Justice Action.

On 12 October 2005, the letter from the Department of 27 September 2005 was sent to Justice Action and the Commonwealth for comment. On 28 October 2005, Justice Action confirmed that it did not consider this response to be adequate and wished to proceed with the complaint. No response was received from the Commonwealth.

7.2 The response from the Department to my tentative recommendations

By letter dated 21 December 2005, the Department made the following submission:

As stated in my previous letter, the Department is prepared to allow Justice Action to provide a copy of its magazine “Framed” to any Federal inmate who requests it provided the edition has first been vetted by the Department.

…The Department is not prepared to allow Justice Action to issue its magazine to all Federal inmates without a specific request being made. The majority of Federal inmates are foreign nationals who may not speak or read English and probably have little interest in the issues raised in “Framed.”

The Department is opposed to Justice Action being permitted to send unsolicited copies of its magazines to all Federal inmates.

Accordingly, the Department submitted that tentative recommendations 1 and 2 (above) should be amended to include the qualification that the Department only distribute ‘Framed’ to federal inmates who request a copy of the magazine.

Justice Action and the Commonwealth did not make any submissions in response to the tentative view or the tentative recommendations.

8. FINDINGS

I reviewed this inquiry in light of the letter of 27 September 2005 from the Department, and considered all the information now available afresh.

The Department’s letter reiterates its earlier submission that the banning of ‘Framed’ was authorised by law by the Regulation. For the reasons set out in paragraph 6.3 above, I am not persuaded that the banning of ‘Framed’ from distribution in NSW correctional centres generally and on an ongoing basis, in the absence of any inspection of the individual editions was authorised by the Regulation.

However, article 19(3) of the ICCPR provides that even if the restriction on the rights in article 19(2) is provided for by law, it must also be necessary for one of the listed purposes. For the reasons set out in paragraph 6.4 above, I am of the view that the banning of ‘Framed’ was not necessary to achieve the purposes listed in article 19(3), relevantly, to protect public order or the rights or reputations of others.

I therefore remain of the view that the ban on the distribution of ‘Framed’ constitutes a breach of article 19 of the ICCPR and is therefore inconsistent with or contrary to the human rights of federal prisoners in NSW correctional centres under the HREOC Act. I confirm the tentative findings notified to the parties of this complaint on 26 August 2005 (set out in part 6 above) and report accordingly.

9. RECOMMENDATIONS

I have also considered my tentative recommendations in light of the letter of 21 December 2005 from the Department. I see no basis for restricting the distribution of ‘Framed’ in the manner submitted by the Department. I am of the view that Justice Action should be able to distribute ‘Framed’ in accordance with their usual practices. I confirm my tentative recommendations (set out in paragraph 6.6 above).

The Commission makes the following recommendations:

  1. The Commissioner of Corrective Services allow the editions of ‘Framed’ the subject of this complaint (No. 43, 44 and 45) to be sent out by Justice Action to federal prisoners detained in New South Wales correctional centres.
  2. The Commissioner of Corrective Services remove the ban on the distribution of the publication ‘Framed’ to federal prisoners detained in New South Wales correctional centres.
  3. Any decision to restrict or prevent distribution of an edition of ‘Framed’ under the Crimes (Administration of Sentences) Regulation 2001 only be made once that particular edition or article has been considered by the Commissioner of Corrective Services or a nominated officer and then as is necessary:
    1. for the respect of the rights or reputations of others;
    2. for the protection of national security or of public order (ordre public), or of public health or morals.

10. ACTION TAKEN BY THE RESPONDENTS AS A RESULT OF THE FINDINGS AND RECOMMENDATIONS

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

By letter dated 19 January 2006, the Department stated it had no intention of taking any action to effect my recommendations.

I report accordingly to the Attorney-General

John von Doussa QC
President
February 2006

APPENDIX ONE

Functions of the Human Rights and Equal Opportunity Commission

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

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

(1) The functions of the Commission are:

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

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

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

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

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

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

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

ENDNOTES

  • [1] The jurisdiction of the Commission in relation to the inquiry into acts or practices 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 is set out in Appendix One.
  • [2] See Leeth v The Commonwealth (1992) 174 CLR 455 and R v Gee (2003) 196 ALR 282.
  • [3]Leeth v The Commonwealth (1992) 174 CLR 455 at 480 (Brennan J).
  • [4]Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 (Mason CJ, Gaudron J).
  • [5]R v Portus, Ex parte Federated Clerks Union of Australia(1949) 79 CLR 428 at 438 (Dixon J).
  • [6] S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary, (Second Edition, Oxford University Press, 2004) p 525.
  • [7]Hollingsworth v Lee [1949] ALR 541.
  • [8]Faurisson v France(550/93).
  • [9] S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary, (Second Edition, Oxford University Press, 2004) p 524 - 544.
  • [10] Ibid at 541.
  • [11] See for example, Gauthier v Canada (633/95) ibid, at p 530.
  • [12] M. Nowak, UN Covenant on Civil and Political Rights – CCPR Commentary, (NP Engel, 1993) p 357.

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updated 22 March 2006.