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DIMA: temporary exemption

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Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (Cth)

Section 44(2)

NOTICE OF GRANT OF TEMPORARY EXEMPTION

By this instrument the Human Rights and Equal Opportunity Commission
(“the Commission”) grants to the Department of Immigration
and Multicultural and Indigenous Affairs (“DIMIA”) its contractors
and agents, a temporary exemption (“the exemption”) pursuant
to section 44(2) of the Sex Discrimination Act (Cth) 1984 (“the
Act”), in relation to the operation of sections 22, 23 and 26 of
the Act.   The temporary exemption applies only on the terms set
out in this instrument.

1. TERMS OF THE EXEMPTION

1.1 The
temporary exemption is to commence from the date of this Notice and
is to continue for a period of 12 months.

1.2 The
exemption is granted to DIMIA, its contractors and agents, in response
to an application made on behalf of DIMIA by Ms Philippa Godwin, then
First Assistant Secretary, Unauthorised Arrivals and Detention Division,
DIMIA contained in her letter dated 2 August 2002. That application sought
a 12 month extension to the 12 month exemption granted to DIMIA by the
Commission on 7 August 2001.

1.3 The
exemption is granted in respect of a project conducted in Woomera,
South Australia, known as the Residential Housing Project (“the Project”),
whereby (i) female detainees and (ii) male detainees up to the age of
12 years at the Woomera Immigration Reception and Processing Centre (“the
IRPC”) and potentially from other detention centres are eligible
to participate in alternative detention arrangements, namely accommodation
in houses in Woomera outside the IRPC.

1.4 The
exemption is granted on the condition that the operation of the Project
be subject to the continuing monitoring of the Commission as set out
in 5.8 below.

2. BACKGROUND

2.1 On
7 August 2001, in response to an application dated 20 July 2001 from
the Minister for Immigration and Multicultural and Indigenous Affairs
(“the Minister”), the Commission granted a 12 month exemption
to DIMIA, its contractors and agents from the operation of sections
22, 23 and 26 of the Act.

2.2 On
16 August 2002, in response to an application dated 2 August 2002 made
on behalf of DIMIA by Ms Philippa Godwin, then First Assistant Secretary,
Unauthorised Arrivals and Detention Division, the Commission granted
a further interim exemption to 15 October 2002.

2.3 On 26 and 27 September
2002, for the purpose of determining whether the Commission should grant
a further 12 month exemption, the Human Rights Commissioner, Dr Sev Ozdowski,
the Sex Discrimination Commissioner, Ms Pru Goward, and Commission staff
inspected the IRPC and the Project and interviewed:

  • families in the Project
  • partners and children in the IRPC of families in the Project
  • those in the IRPC who decided not to take the opportunity to move
    into the Project
  • DIMIA and Australasian Correctional Management (“ACM”)
    officers.

2.4 An
evaluation report dated 8 March 2002 of the alternative accommodation
trial was prepared for DIMIA by a consultant and a version was provided
to the Commission.

3. FINDINGS ON MATERIAL
QUESTIONS OF FACT

Based on the evidence referred to in paragraph 4.1 the Commission’s
findings on material questions of fact relating to the application
are as follows:

3.1 The
Project comprises four houses located in the Woomera community, three
of which are available for shared accommodation. The Project has a capacity
of 25 participants. The Project is available to (i) female detainees
and (ii) male detainees up to age 12 (with the Minister having the discretion
to permit male detainees above the age of 12 to participate on a case
by case basis).

3.2 DIMIA
established the Project with the intention of providing a different form
of immigration detention to provide for the needs of women and children
asylum seekers. In particular, participants in the Project would be enabled
to lead a more normal family life in matters such as cooking, having
family meals, maintaining the house, doing the laundry and so on. Children
would also be able to live and play in a family atmosphere within a small
group house and garden.

  • DIMIA does not permit male detainees over 12 years of age to participate
    in the Project as it is of the view that to do so would mean the
    number of overall participants would be reduced as a house would
    need to be set aside for male ablutions. DIMIA is also of the view
    that female detainees might be reluctant to participate in the Project
    if it meant being in close proximity to non familial male participants.
    DIMIA has also indicated the participation of adult male participants
    in the Project may give rise to security issues.

3.4 A
report prepared for DIMIA by a consultant gave a positive evaluation
of the alternative accommodation trial and made a number of recommendations
which include:

  • the continuation of the Project,
  • an increase in capacity of the Project, and
  • expansion of the eligibility criteria to include detainees at
    review stage.

The
Minister is supportive of the recommendations and has permitted detainees
at the review stage to participate in the Project.

(The following was ascertained from the Commission’s visit
to the IRPC and the Project :)

3.5 Female
participants in the Project are permitted to visit their male partners
in the IRPC on a daily basis and may remain overnight in the IRPC. Male
detainees have, on at least one occasion, been permitted to visit their
partners at the Project but not remain overnight.

3.6 Female
participants in the Project feel safer at the Project than at the IRPC.
Detainees at the IRPC are overwhelmingly single male detainees, and,
even though families are generally detained in a family compound, female
detainees can be the subject of unwanted attention. This attention can
lead to a feeling of fear or vulnerability on the part of a female detainee.
Further, the witnessing of incidents of self harming by detainees at
the IRPC may also give rise to fear on the part of female detainees.

3.7 Parents
feel their children are safer at the Project. It was felt that residing
in the Project enabled children to live in an environment which is more
peaceful and quieter than the IRPC. The issue was raised of the detrimental
effect on children of residing in the environment of the IRPC where there
were incidents of self harm and frequent episodes of yelling and screaming.
It was reported that the change in location has significantly improved
the behaviour of the children.

3.8 The
participants find the Project provides a more normal existence “closer
to the life we had before” [comment of a resident at the Project].
They are able to cook, shop, have excursions and enjoy the amenity
of the communal lawn. Outings from the Project are, however, subject
to the supervision of ACM Officers.

3.9 Many
female participants at the Project were distressed by the separation
from their husbands and were anxious about their husband’s limited
involvement with their children, as well as the effect of that separation
and limited involvement on their husbands’ well-being. Whilst
acknowledging the better environment of the Project, distress resulting
from separation was an issue as was the impact for children on their
relationship with their fathers. Certainly there was information before
the Commission indicating that families suffered, sometimes severely,
from the separation.

3.10 Female
participants at the Project would be concerned about residing in the
same house at the Project as non-familial male participants.

3.11 Husbands
of female participants preferred their wives and/or children to reside
at the Project as the environment of the IRPC was considered not to be
a proper place for women and children. Accordingly, husbands reported
the benefits of the Project for their family, their children and themselves.

3.12 For
fathers residing at the IRPC there was nevertheless the serious issue
of separation, its detrimental impact on their well-being and their
inability to properly fulfil their role as a parent and husband.  

3.13 Children
at the Project are able to lead a more normal and healthier life at
the Project than they would at the IRPC. However, for children at the
Project there is a serious concern about separation from their fathers.
That is, children missing their fathers, concern about the impact of
separation on the well-being of the fathers, reservations about visiting
the IRPC in view of past experiences, and the very limited opportunity
fathers have had to visit the Project.  

4. THESE FINDINGS WERE
BASED ON THE FOLLOWING EVIDENCE

4.1 The
application for exemption from the Minister dated 20 July 2001, the
application from Ms Godwin on behalf of DIMIA dated 2 August 2002,
the Commission’s
own knowledge, including information obtained from its visit to the IRPC
and the Project on 26 and 27 September 2002, and the consultant’s
evaluation report prepared for DIMIA dated 8 March 2002.

5. THE COMMISSION’S
REASONS FOR GRANTING AN EXEMPTION ARE AS FOLLOWS:

5.1 Having
considered the advice and recommendation of the Sex Discrimination Commissioner
and the Human Rights Commissioner, the Commission is of the view that
in light of the objects of the Act the continuation of the project is
worthwhile and that the exemption to ensure the Project may operate without
challenge under the Act is appropriate.

5.2 There
is a possibility the Project may be in contravention of sections 22,
23 or 26 the Act:

Section
22 which is contained in Division 2 of Part II of the Act renders unlawful
discrimination by a person, who provides goods and services or makes
facilities available, against another person on the ground of that other
person's sex, marital status, pregnancy or potential pregnancy in the
provision of those goods, services or facilities.

Section
23 contained in Division 2 of Part II of the Act, renders unlawful
discrimination by a person against another person on the ground of
the other person’s
sex, marital status, pregnancy or potential pregnancy in connection
with the provision of accommodation.

Section
26 contained in Division 2 of Part II of the Act, renders unlawful
discrimination by a person against another person on the ground of
the other person’s
sex, marital status, pregnancy or potential pregnancy in connection
with the performance of a function or exercise of a power under a Commonwealth
law or for the purposes of a Commonwealth program.

5.3 Section
44(2) enables the Commission to grant, on application from a person,
a further temporary exemption from the operation of a provision of Division
1 or 2 of Part II of the Act.

5.4 The Commission has previously
stated that Australia’s mandatory detention regime is in breach
of its human rights obligations under the International Covenant on
Civil and Political Rights and the Convention on the Rights of the
Child.  In particular,
Article 37 of the Convention on the Rights of the Child provides that
a child shall be detained only as measure of last resort and for the
shortest appropriate period of time. The Commission also notes that
the Preamble to the Convention on the Rights of Child recognises the
family as the fundamental group of society and the need for a child
to grow up in a family environment.

5.5 The
Human Rights Commissioner has encouraged the development of alternatives
to the current detention regime that are consistent with Australia’s
human rights obligations.

5.6 The
Commission commends DIMIA on its proposal to increase the capacity of
the Project and to expand the eligibility criteria to include detainees
at review stage and for the initial steps it has taken to enable husbands/fathers
to gain access to their wives/children at the Project. In view of the
distress caused to families as a result of separation of family members
and the impact separation has on the development and well being of the
family unit the Commission strongly urges DIMIA to further pursue the
broadening of access by husbands/fathers to their wives/children at the
Project, including giving serious consideration to the provision of dedicated
family accommodation at the Project. The Commission also strongly urges
DIMIA to give serious consideration to including family accommodation
when implementing new residential housing projects in conjunction with
other detention centres, including the new Baxter detention centre in
Port Augusta.

5.7 The
Commission’s general approach in respect of temporary exemption
applications is that the Act in the context of its objects should comprehensively
apply.   It also appropriate to take into account relevant human
rights instruments including the Convention on the Rights of the Child.
In this case whilst the exemption is not fully consistent with the
objects of the Act, the public policy considerations of the benefits
that flow to the residents of the Project, their children and thus
their husbands in the IRPC (as reflected in their views set out above)
from the continuation of the Project, the Commission, on balance, regards
it as appropriate to grant the exemption sought.

5.8 This
exemption is granted subject to the condition that DIMIA permit the Commission
to monitor the operation of the Project including by:

-notifying
the Commission of any proposed changes to the operation of the Project
that might restrict the operation of the Project, and providing the Commission
with an opportunity to comment on those changes.

-allowing the Commission, subject only to operational requirements,
continued access to the Project as required by the Commission, including
the opportunity to interview DIMIA and ACM staff, residents of the Project
and other detainees.

Dated this 14th day of October 2002

Signed by the President, Professor Alice Tay AM, on behalf of the Commission.

Please note
Section 45 of the Act provides that applications may be made to
the Administrative Appeals Tribunal for a review of a decision made
by the Commission under section 44 of the Sex Discrimination Act.

Last
updated 20 October 2005.