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DIMA: temporary exemption

Legal Legal
Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (Cth)

Section 44(1)

NOTICE OF GRANT OF TEMPORARY EXEMPTION

By this instrument the Human Rights and Equal Opportunity Commission
grants to the Department of Immigration and Multicultural Affairs (“DIMA”)
its contractors and agents, a temporary exemption ("the exemption")
pursuant to section 44(1) 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 (“the 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 DIMA, its
contractors and agents, in response to an application for exemption
dated 4 April and 20 July 2001 from the Hon Phillip Ruddock, the Minister
for Immigration and Multicultural Affairs.

1.3 The exemption is granted in respect
of a trial project to be conducted in Woomera, South Australia, whereby
(i) female detainees and (ii) male detainees up to the age of 12 years
at the Woomera Immigration Reception and Processing Centre will be
eligible to participate in alternative detention arrangements, namely
accommodation in houses outside the Centre.

2. FINDINGS ON MATERIAL
FACT

The Human Rights and Equal Opportunity Commission’s findings
on material questions of fact relating to the application were as follows:

2.1 DIMA proposes to introduce a trial alternative
accommodation project for detainees held at the Woomera Immigration
Reception and Processing Centre. Only (i) female detainees and (ii)
male detainees up to the age of 12 years will be eligible to participate
in the project. The maximum number of participants will be 25. The
alternative accommodation arrangements will comprise four houses located
in the community, three of which will be available for shared accommodation.
These arrangements are intended to provide a different form of immigration
detention that will provide for the needs of women and children asylum
seekers. It is envisaged that participants in the project will be able
to lead a more normal family life through such matters as attending
school, cooking, having family meals, maintaining the house, doing
the laundry and so on. Children will be able to live and play in family
atmosphere within a small group house and garden. DIMA advises that
the trial cannot be extended to males as 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 and as females might be reluctant to participate
if it meant being in close proximity to non familial males.

2.2 As males over the age of 12 may not participate
in the trial, there may be discrimination against males in potential
contravention of the Act.

3.THESE FINDINGS WERE
BASED ON THE FOLLOWING EVIDENCE

3.1 The application for an exemption dated
20 July 2001 from the Hon Phillip Ruddock, the Minister for
Immigration and Multicultural Affairs and the Commission’s own
knowledge of the Woomera Immigration Reception and Processing Centre
resulting from its visits to the Centre.

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

4.1 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 trial project is a worthwhile project and that the exemption
to ensure the scheme may operate without challenge under the
Act is appropriate.  

4.2 There is a possibility the proposed alternative
detention arrangements may be in contravention of the Sex Discrimination
Act.

4.3 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.

4.4 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.

4.5 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.

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

4.7 The Commission’s stated policy is
that Australia’s mandatory detention regime as it currently
exits 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.

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

4.9 The Commission’s general approach
in respect of temporary exemption applications is that the Act in the
context of its objects should comprehensively apply.   In this
case having regard to human rights issues and the objects of the
Act the Commission, on balance, regards it as appropriate to grant
the exemption sought.

Dated this seventh day of August 2001

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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 24 October 2005.