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DIMIA: 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
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
1984 (Cth) ("the Act"), from
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 exemption is to commence from the
date of this Notice and is to continue until 15 October 2002.

1.2 The exemption is granted to DIMIA, its
contractors and agents, in response to a request from DIMIA that
an interim exemption be granted pending consideration by the Commission
of an application dated 2 August 2002 from DIMIA that the exemption
granted by the Commission on 7 August 2001 for twelve months in relation
to the alternative accommodation trial at Woomera be granted for a
further twelve months.

1.3 This exemption is granted in respect of
a project (known as the Woomera Residential Housing Project) 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 (“the Centre”) (and,
potentially, at other detention centres), are eligible to participate
in alternative detention arrangements, namely accommodation in houses
in Woomera.

2. FINDINGS ON MATERIAL
QUESTIONS OF FACT

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

2.1 On 6 July 2001 the Hon Phillip Ruddock,
the Minister for Immigration and Multicultural Affairs, applied for
an exemption from the Commission under s.44 of the Act in respect of
a twelve month trial of an alternative accommodation project for detainees
held at the Centre.

The details
of the project were that: only (i) female detainees and (ii) male
detainees up to the age of 12 years were eligible to participate in
the project; the maximum number of participants was 25; and, the alternative
accommodation arrangements comprised a small number of houses located
in the community. These arrangements were intended to provide a different
form of immigration detention that provided for the needs of women
and children asylum seekers. The intention of the trial was that participants
in the project 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. It was intended that children
be able to live and play in family atmosphere within a small group
house and garden. The application advised that the trial could not
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 An exemption under the Act was sought
because, as males over the age of 12 were not eligible to participate
in the trial, there may be discrimination against males in potential
contravention of the Act.

2.3 On 7 August 2001 the Commission granted
the exemption for the following reasons:

    “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.”

2.4 The term of the exemption was for a period
of twelve months.

2.5 On 2 August 2002 DIMIA made application
for a further grant of exemption for a period of 12 months.

2.6 DIMIA has sought a short interim exemption
pending the Commission’s consideration of this application.

3. THESE FINDINGS WERE
BASED ON THE FOLLOWING EVIDENCE

3.1 The application made on behalf of DIMIA
by Ms Philippa Godwin, First Assistant Secretary, Unauthorised
Arrivals and Detention Division, DIMIA contained in her letter to
me dated 2 August 2002. The Commission’s Notice of Grant of Temporary
Exemption dated 7 August 2001.

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

4.1 DIMIA advises that a report prepared 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.

DIMIA advises the Minister is supportive of these recommendations.

4.2 DIMIA is of the view that given the positive
evaluation of the trial and its demonstrated benefits to the social and
psychological well being of detainees it is important that the project
be able to continue.

4.3 The initial exemption expired on 6 August
2002.

4.4 In order to determine whether it will
agree to grant an exemption for a further 12 months the Commission
wishes to give full consideration to the application for that exemption
including consideration of the consultant’s evaluation report. (DIMIA advises
that the evaluation report will be made available to the Commission by
approximately 30 August 2002.) The Commission’s consideration may
involve its inspection of the alternative facility.  So that DIMIA
may be exempt from the operations of sections 22, 23 and 26 of the
Act pending consideration of its application by the Commission, the
Commission has determined that a temporary exemption be granted to
DIMIA until 15 October 2002.

Dated this sixteenth day of August 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 24 October 2005.