HRC Report No. 13

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights

HRC Report No. 13
Copyright © Commonwealth of Australia 2001
Copying is permissible with acknowledgment of the authorship of the Human Rights and Equal Opportunity Commission, Sydney, 2001.


CONTENTS

1. Introduction

2. The inquiry

2.1 The complaints

2.2 The Department's response

2.3 Preliminary finding

2.4 Further submissions

- Written submissions of the complainants
- Written submissions of the Department

3. Notice of findings and recommendations of the Commission

4. Findings and reasons for findings

4.1 Is there an act or practice?

4.2 Is the act or practice inconsistent with or contrary to any human right?

- International jurisprudence and commentary
- Domestic case law
- Discussion and reasons

5. Recommendations

6. The Department's reply to the findings and recommendations

Endnotes

Appendix A:
Functions of the Human Rights and Equal Opportunity Commission in Relation to Human Rights


1. INTRODUCTION

This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission (Commission) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) into complaints concerning acts or practices inconsistent with or contrary to human rights. A description of the Commission's jurisdiction in this regard is set out at Appendix A to this report.

2. THE INQUIRY

2.1 The complaints

This report concerns an inquiry into complaints made by Mr Vo Tuan Kiet, Mr Le Hieu Trong, Mr Le Van Chung, Mr Ly Minh Thanh, Mr Mai Ngoc Cuong, Mr Pham Thanh Cuc, Mr Nguyen Thanh Lam, Mr Nguyen Thanh Vu, Mr Pham Duc Tam and Mr Tran Thanh Tuan. The complaints are the same in all material respects.

Each of the complainants came to Australia from Vietnam and was granted permanent residency. The complainants were all convicted of criminal offences and have served criminal sentences in New South Wales. They have been served with deportation orders by the Department of Immigration and Multicultural Affairs (the Department). Each of the complainants is currently being held at the Parramatta Correctional Complex and is awaiting deportation to Vietnam.

The complainants allege that their human rights are being breached because they have all served their sentences but continue to be detained in prison because their deportation to Vietnam has been delayed. The complainants are concerned about the continuing and indefinite nature of their detention.

2.2 The Department's response

In its initial response to the Commission's investigation, the Department denied that the complainants are being detained either unlawfully or arbitrarily. It stated that the detention of the complainants has at all times been in accordance with Australian law and relevant international instruments.

The Department stated that all persons subject to a deportation order are detained pursuant to section 253 of the Migration Act 1958 (Cth) (the Migration Act). The main test applied in each case is that of balance between the support that a deportee may have in the community, as opposed to the risk that person presents to the community. Primary consideration is given to the Minister's General Direction on criminal deportation that clearly states that deportees cannot expect to be at liberty after the conclusion of their sentence until deportation occurs. Following the conclusion of their sentences, all prisoners are held in remand centres, of which the Parramatta Correctional Complex is one. The respondent stated that the decision to move some of the detainees from the Silverwater Remand Centre was a decision of NSW Corrective Services.

The Department stated that the complainants' sentences were completed and they were served with deportation orders on the following dates:

Name

Sentence completed

Deportation order

Mr Le Van Chung
17 February 1998
8 April 1997
Mr Ly Minh Thanh
14 May 1998
9 June 1997
Mr Vo Tuan Kiet
18 June 1998
20 August 1997
Mr Le Hieu Trong
4 September 1998
9 June 1997
Mr Nguyen Thanh Lam
14 December 1998
28 September 1998
Mr Tran Thanh Tuan
2 March 1999
4 November 1997
Mr Nguyen Thanh Vu
10 March 1999
2 November 1998
Mr Pham Thanh Cuc
23 April 1999
28 March 1998
Mr Mai Ngoc Cuong
27 July 1999
4 November 1997
Mr Pham Duc Tam
27 October 1999
21 June 1998

The Department provided the following background information to each of the complainant's situations:

Name

Type of visa

Date arrived

Age on arrival

Mr Le Van Chung Refugee
18 October 1990
11
Mr Ly Minh Thanh Refugee
6 January 1994
11
Mr Vo Tuan Kiet Refugee
26 May 1983
16
Mr Le Hieu Trong Refugee
26 May 1983
16
Mr Nguyen Thanh Lam Family migration
18 March 1992
19
Mr Tran Thanh Tuan Refugee
25 May 1984
24
Mr Nguyen Thanh Vu Refugee
27 June 1991
17
Mr Pham Thanh Cuc Refugee
21 March 1995
25
Mr Mai Ngoc Cuong Unknown
2 April 1986
13
Mr Pham Duc Tam Migrant visa
22 May 1991
19

Name

Conviction

Mr Le Van Chung Supply prohibited drugs, goods in custody
Mr Ly Minh Thanh Assault with intention to steal, malicious wounding
Mr Vo Tuan Kiet Robbery whilst armed, robbery
Mr Le Hieu Trong Supply prohibited drug
Mr Nguyen Thanh Lam Possessing prohibited drug
Mr Tran Thanh Tuan Supply prohibited drug
Mr Nguyen Thanh Vu Supply prohibited drug
Mr Pham Thanh Cuc Robbery in company
Mr Mai Ngoc Cuong Supply prohibited drug
Mr Pham Duc Tam Supply prohibited drug

The Department stated that the reason that deportation has been delayed is that the Government of Vietnam has not provided travel documents to the complainants authorising their return to Vietnam. It stated that up until 1996 the Vietnamese Government was not receptive to requests to deport Vietnamese criminals to Vietnam. However, since that time the Vietnamese Government has agreed, in principle, to implement its international obligations to receive back its nationals. The Department stated that a reason for delay is that the Vietnamese Government must reassure itself of the identity of the person being returned, which is a lengthy process and one which the Department asserts has been further delayed by some of the deportees not cooperating with Departmental officers.

The Department stated that it anticipated that the complainants will be returned to Vietnam. It said that Vietnam is a signatory to the International Covenant on Civil and Political Rights (ICCPR) and as such has accepted its obligation to allow the return of its citizens. The Department also noted that parallel to its efforts to progress these matters on a case-by-case basis, the Commonwealth has commenced negotiation with the Vietnamese Government concerning the signing of a memorandum of understanding on this issue which the Vietnamese Government is currently considering. The Department stated that while a specific time frame has not been agreed, it is confident that the agreement will be signed, and the real expectation is that a mechanism to return Vietnamese nationals will be established.

The Department stated that the detention of the complainants is pursuant to the discretionary powers in section 253 which also makes detention limited to the time until the person is removed from Australia and so is finite. It noted that the situation of each complainant is reviewed on a monthly basis and so is not arbitrary.

The Department provided to the Commission a number of documents relating the complainants' deportation and detention at the Parramatta Correctional Complex.

2.3 Preliminary finding

On 26 September 2000 I wrote to the Department and the complainants and advised that I had made a preliminary finding that the acts and practices complained of by the complainants amounted to a breach of human rights. I enclosed a report containing my preliminary finding.

2.4 Further submissions

Following this preliminary finding I made directions for further submissions by the parties. Pursuant to section 27 of the Act I invited the parties to make submissions orally or in writing or both. The parties elected to make written submissions.

Written submissions of the complainants

The Commission received a number of written submissions and additional documents from some of the complainants. Mr Vo provided submissions to the Commission on behalf of all the complainants. In particular, he provided the Commission with copies of his latest requests for review of his detention and with the reasons of the Department for refusing these requests. He submitted that he was being kept in custody in circumstances in which there was a "practical impossibility of effecting the deportation within a reasonable time". Mr Trong Hieu Le also provided written submissions to the Commission outlining the conditions of his detention.

Written submissions of the Department

In its written submissions the Department argued that the detention of the complainants was not a breach of human rights. Essentially, the Department stated that the detention is authorised by domestic legislation (being section 253 of the Migration Act) and is not arbitrary under article 9 of the ICCPR . It contended both that the period of detention is not unpredictable, unjust or disproportionate and that the location of the detainees in the Parramatta Correctional Complex is not unjust or unreasonable.

More specifically, in relation to the period of detention, the Department stated that it is fully aware of the prohibition in article 9 of the ICCPR and does not regard the detention of the complainants as "arbitrary". The Department submitted that to be "arbitrary", detention must have elements of "inappropriateness, injustice, lack of predictability and unproportionality" although the law is not settled as to what degree of unpredictability and unproportionality is required. However, the authorities do suggest that to be so manifestly unpredictable as to be arbitrary, the period of detention must be undetermined. The Department asserted that an indefinite period of detention means something more than the exact period of detention being not prescribed by law. Detention will be indefinite where there is no legal basis for the detention or where the power to release is not triggered by a specific decision or event.

The Department argued that there is a clear legal basis in section 253 of the Migration Act to detain deportees pending removal and that this was confirmed by the Full Federal Court in Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803 where the Court said that "we cannot accept that the length of detention can of itself destroy the legal validity of detention". The power to release detainees can be exercised by the Minister or the Secretary of the Department (section 253(9)) and will, in the case of the complainants, be triggered by a specific event, namely the conclusion of the memorandum of understanding and the acceptance by the Vietnamese Government of the return of the complainants. This event is considered to be "probable". The mere "possibility" of non acceptance is not the appropriate or meaningful benchmark for decision making under section 253(9).

In relation to negotiations with Vietnam, the Department said that the Australian Government presented a draft memorandum of understanding to the Vietnamese Government in March 2000 and has continued to press for its resolution, as well as making further representations in respect of individual cases. It stated that the Government of Vietnam has never explicitly stated that it would not accept the return of the complainants and has signalled its interest in reaching a framework agreement for the return of Vietnamese nationals. Vietnam has made such arrangements with other countries and Australia's efforts are based on this precedent as well as on Vietnam's signalled interest in reaching agreement on the return of deportees. The Department submitted that it is reasonable to rely on these matters.

Further, the Department stated that it has in many cases lobbied governments to provide travel documents and, even in cases where there is initial reluctance, the approach is successful in the majority of cases. The Department and the Department of Foreign Affairs and Trade continue to negotiate with the Government of Vietnam for the return of the complainants in "as short a time frame as possible" and the situation of the complainants is closely monitored by the Department.

In relation to the location of the detention, the Department argued that section 5 of the Migration Act allows a state correctional facility to be a place of immigration detention. People more appropriately detained in such facilities are those who are of behavioural concern or who have committed serious criminal acts (Migration Series Instruction 244). The condition of detainees is subject to regular monitoring and formal monthly reviews are conducted by Departmental officers. Given there is a legislative basis for detention in state correctional facilities and given the monitoring received, the Department submitted that the location of the detention in the Parramatta Correctional Complex is not unjust or unreasonable.

3. NOTICE OF FINDINGS AND RECOMMENDATIONS OF THE COMMISSION

On 24 November 2000 I issued to the Department a notice of my findings, my reasons for these findings and my recommendations in relation to this inquiry. I found that there had been a breach of human rights under the HREOC Act and I recommended that the complainants be released from detention pending their deportation. I provided a copy of this notice to the complainants.

My findings, reasons for findings and recommendations of which notice was given on 24 November 2000 are set out in sections 4 and 5 below.

4. FINDINGS AND REASONS FOR FINDINGS

In deciding whether any act or practice is inconsistent with or contrary to human rights under the HREOC Act I must consider:

  • whether there is an act or practice under the HREOC Act; and if so
  • whether the act or practice is inconsistent with or contrary to any human right.

4.1 Is there an act or practice?

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 Department is a Commonwealth government department, under the Minister for Immigration and Multicultural Affairs. The acts or practices complained of relate to continued detention of the complainants following the conclusion of their sentences. Although the detention is pursuant to the Migration Act, the Minister or the Secretary of the Department has a discretion under subsections 253(8) and (9) of the Migration Act to release the complainants.

As there is a discretion in section 253, the detention is not directly compelled by the legislation and I am satisfied that the matters complained of are acts and practices of the Commonwealth for the purposes of the HREOC Act.

4.2 Is the act or practice inconsistent with or contrary to any human right?

Section 3 of the HREOC Act defines "human rights" as including the rights and freedoms recognised in the ICCPR, which is Schedule 2 to the HREOC Act. Article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

In my preliminary report, I made a number of findings which do not appear to be in dispute. I therefore make the following findings:

  • The complainants are all Vietnamese nationals who have been living in Australia as permanent residents for a number of years. The complainants were all convicted of criminal offences that incurred prison sentences. The complainants have completed these sentences.

  • The complainants have had deportation orders served against them pursuant to section 200 of the Migration Act. The complainants can all legally be deported to Vietnam, which is their country of origin.

  • The complainants are currently incarcerated in the Parramatta Correctional Complex awaiting deportation to Vietnam pursuant to a discretionary power of the Minister under section 253 of the Migration Act. The complainants have been detained in the Parramatta Correctional Complex as immigration detainees for periods ranging from two years and nine months to 13 months.

  • The Parramatta Correctional Complex is a maximum security prison controlled by the NSW Department of Correctional Services. The Commonwealth has an agreement with the NSW Government for persons who are to be deported to be incarcerated in state prisons.

  • The complainants cannot be deported under the deportation orders because the Government of Vietnam has not provided the relevant papers to allow the complainants to be deported to Vietnam.

In relation to the negotiations with the Vietnamese Government concerning travel documents for the complainants, I make the following findings:

  • Negotiations are underway with the Government of Vietnam in relation to securing these travel documents as well as in relation to the formalisation of a framework agreement for the return of deportees generally.

  • A memorandum of understanding was signed by Australia and forwarded to Vietnam in March 2000.

  • The Vietnamese Government has not signed the memorandum of understanding.

  • Travel documents have not been received for any of the complainants and it is not known when they will be forthcoming.

In considering whether the detention of the complainants in these circumstances is arbitrary under article 9(1), I have been guided by both international and domestic jurisprudence.

International jurisprudence and commentary

The right in article 9(1) extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration.[1] The Human Rights Committee has on a number of occasions found detention following the expiration of a criminal sentence to amount to a breach of article 9(1). [2]

Further, the reference to arbitrariness in article 9(1) imposes a separate and distinct limitation on detention to the requirement that the detention be lawful. When the article was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law. [3] The Human Rights Committee in Van Alphen v The Netherlands, 305/1988, adopted 23/7/1990, confirmed that there are various factors which may render an otherwise lawful detention arbitrary. It said that:

arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.

Nowak summarises the jurisprudence in this area to the effect that article 9(1) requires that deprivation of liberty provided for by law "must not be manifestly unproportional, unjust or unpredictable". [4] Further, in A v Australia the Human Rights Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. [5]

Domestic case law

In Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342, Madgwick J considered the situation in which a person is detained where there are no prospects of deportation occurring. His Honour said that delay in the execution of a deportation order does not invalidate the order itself but that the "prospect of a long delay" is not irrelevant to its validity. His Honour said that:

. the principle purpose of and justification for the making of a deportation order is to effect the proposed deportation of the person. If it were plain that there was no prospect of effecting the deportation within a reasonable period, there might be no justification for the making of the order and the conclusion might be invited that the power to make the order was being exercised for some extraneous and therefore legally improper purpose. Further, upon its later becoming apparent, after the regular making of an order, that events revealed a practical impossibility in actually effecting the deportation, questions of the Minister then having a legal duty to revoke the order might arise.. Nevertheless, delay on its own may be a less alarming matter than a likelihood that a practical consequence of the making of a deportation order will be indeterminate detention, in the sense of detention for a long period or an unknown period that is not acceptably short (emphasis added).

His Honour continued:

Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to our legal and political traditions and to international conceptions of human rights for which Australia has signified our respect by entering into treaties.

He further commented that "some delay in effectuating a deportation order may be unavoidable. But indeterminate administrative detention is a very different thing". In considering whether there was a clear legislative mandate for administrative detention of an unacceptable duration, Madgwick J construed the Migration Act in the light of Australia's international obligations, including article 9 of the ICCPR.

Madgwick J gives some guidance as to what will be a "reasonable prospect of the deportation order being effected within a reasonable time". This must be considered in all the circumstances and a "commonsense appreciation of practicalities" should be brought to bear. One relevant matter will be "justified expectation, based on past dealings with a proposed deportee's country of nationality, about reasonably prompt effectuation of the deportation". Subsection (8) of section 253 requires a "real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future". Further, subsection (9) is an "active source of the Minister's power to prevent injustice". The likelihood of indeterminate detention is an important matter affecting the merits of a decision to make a deportation order.

The Federal Court has considered this issue in a series of cases concerning Mr Vo, one of the present complainants. In Vo v Minister for Immigration and Multicultural Affairs [1998] FCA 1632, Lindgren J refused an application for release from detention. His Honour said that Mr Vo would be unlikely to present himself for deportation if released but "there may come a time when, and there may be circumstances in which, it would not be a sustainable exercise of discretion to keep Mr Vo in detention any longer".

In Vo v Minister for Immigration and Multicultural Affairs [1999] FCA 1845 Tamberlin J considered a further challenge to decisions to continue to detain Mr Vo under section 253 of the Migration Act. His Honour found that the decision maker had taken into account the length of the detention (then 13 months) and that the decision not to release Mr Vo was not "unreasonable" in the Wednesbury sense. His Honour thought the reasonableness of the decision was supported by the evidence presented to him at the hearing about the ongoing negotiations with the Vietnamese Government which "makes it clear that the negotiations for issue of the travel documents to enable the deportation to be implemented will probably be finalised within the next few months". His Honour thought that "the likely outcome will be the deportation of the applicant within the next few months as a result of the strenuous efforts and determined policy of the Australian Government to have the applicant deported" and that the evidence indicated that "a decision is expected to be taken by the Vietnamese authorities by mid-February 2000".

On appeal to the Full Federal Court in Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803, the Court considered the comments of Madgwick J in Perez and agreed that the matters raised by his Honour did go to the merits of a decision under section 253(9). However, the Court said that the length of detention cannot in itself destroy the legal validity of the detention. In considering an argument that the Minister erred in law in failing to take into account the unlikelihood of deportation within a reasonable time when considering whether to order release, the Court said that the decision under review was made on 21 July 1999 and its legality must be tested at that point in time.

Discussion and reasons

Both the international jurisprudence and decisions of domestic courts are relevant in considering whether detention in the complainants' circumstances is in breach of article 9(1) of the ICCPR. I have come to the conclusion that it is. I say this for the following reasons.

I accept that the detention of the complainants is lawful under section 253 of the Migration Act. I also acknowledge that the Department has regularly assessed whether the complainants should continue to be held in immigration detention and placed in the Parramatta Correctional Complex in particular. The Department's primary consideration has been the type of crimes committed by the complainants and the possibility of their presenting themselves for deportation if released, as well as the Department's view on their suitability for detention in Immigration Detention Centres.

The Full Federal Court has held that the length of detention itself cannot affect the legal validity of detention. However, the question before the Commission is not whether the detention is legal pursuant to section 253 of the Migration Act, but whether it is in breach of article 9. Detention may be lawful but still be arbitrary.

In my view, the detention of the complainants in the circumstances in which they are held is arbitrary within the meaning of article 9(1). This is because of the indefinite, indeterminate and unpredictable period for which the complainants have been and will continue to be subject to detention.

I accept his Honour Madgwick J's description of indeterminate detention as "detention for a long period or an unknown period that is not acceptably short". It is quite plain that each of the complainants has been detained for what can reasonably be described as either "a long period" or "an unknown period that is not acceptably short".

The complainants have now been held in prison for periods ranging from 13 months to two years and nine months since the completion of their criminal sentences. Although the Department states that it is "probable" that a memorandum of understanding will be signed and that Vietnam will accept the complainants, there is no clear indication of when this will occur or whether it will occur soon.

The Department, through its officer, gave sworn evidence to the Federal Court in December 1999 that it expected that travel documents would be issued to Mr Vo within the month and that by February 2000 Mr Vo should have left Australia. This has clearly not occurred. The respondent has now submitted to me that it is "probable" that the complainants would be deported soon and that negotiations continue to obtain authority to return the complainants to Vietnam "in as short a time frame as possible". However, it is unable to advise when this will occur.

In the circumstances, the length of the detention of the complainants is plainly unpredictable, indefinite and indeterminate. The fact that detention will end on the occurrence of a known event (the issue of the travel documents) does not render it predictable, finite or determinate, if it is not known when this event will occur.

I appreciate that the Department is in a difficult position and I understand that there are a number of other people in custody who are in the position of the complainants. I acknowledge that substantial efforts have been made and continue to be made to negotiate an agreement with the Vietnamese Government for the return of its nationals. However, the practical result for the complainants is that they remain in immigration detention, where they have each been for some considerable period of time, without any defined or predictable prospect of release. In my view, this detention is arbitrary and in breach of article 9(1).

5. RECOMMENDATIONS

Having found the acts and practices alleged constitute a breach of human rights I am required to consider what recommendations I should make.

The complainants have not requested compensation in relation to this matter and I do not consider that any recommendation in respect of compensation is appropriate in this case.

As I have found that the detention of the complainants is arbitrary, I recommend their immediate release from detention pending deportation. I note that section 253(9) of the Migration Act allows the Secretary or the Minister to release the complainants subject to specified conditions. It is of course open to the respondent to impose reporting or monitoring conditions to ensure that the complainants are available to be deported when deportation can be effected.

6. THE DEPARTMENT'S REPLY TO THE FINDINGS AND RECOMMENDATIONS

On 29 December 2000 the Department responded to the Commission's notice of 24 November 2000. Pursuant to s.29(2)(e) of the HREOC Act, I include in this report the relevant sections of this correspondence from the Acting Secretary of the Department:

I am responding to the letter to the Secretary, Mr Bill Farmer, by Professor Alice Tay, President, HREOC, of 24 November 2000 in which she notified that HREOC would be reporting to the Attorney-General in accordance with section 29 of the HREOC Act 1986 relating to an adverse finding against this Department and requested advice as to what actions this Department will take in response to her recommendations.

In Mr Farmer's letter to your predecessor Mr Chris Sidoti, dated 15 June 2000, he set out in some detail his reasons for taking the view that the detention of the complainants is not arbitrary. I maintain that view.

At the same time, I have directed relevant officers to conduct a comprehensive review of the circumstances of each complainant in order to evaluate whether continued detention remains appropriate. While I intend to have these matters reviewed at a senior level, I cannot give you any assurances that this process will necessarily lead to any releases under section 253(9) of the Migration Act 1958.

I should also advise that on 4 December 2000 the Vietnamese Government passed to us a number of draft amendments to the Memorandum of Understanding currently under negotiation between Australia and Vietnam. While there are a number of proposals in the Vietnamese draft which we will need to refine and negotiate further, the fact of the proposal being made represents a very significant step towards finalising agreed return arrangements with Vietnam. This development is a consequence of our ongoing efforts to engage the Vietnamese Government and you may be assured that we are committed to the earliest possible resolution of these return arrangements.

Thank you for the opportunity to respond to your findings.

Endnotes

1. United Nations Human Rights Committee, General Comment No. 8, (1982), paragraph 1. See also discussion in Human Rights and Equal Opportunity Commission, Those who've come across the seas; Detention of unauthorised arrivals, May 1998 at p.46.

2.See, for example, Communication No. 8/1977, adopted 3 April 1980; Communication No. 277/1988, adopted 26 March 1992; Communication No. 25/1978, adopted 26 July 1982.

3. M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary, 1993 at p.172.

4. Nowak, at p.173.

5. Communication No. 560/1993, adopted 30 April 1997.

APPENDIX A: FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION TO HUMAN RIGHTS

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

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

(1) The functions of the Commission are:

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

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

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

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

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

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

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

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

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

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

Please note: If you require information included in this document which has been provided in Tables in an alternative format, please contact the Human Rights and Equal Opportunity Commission at: paffairs@humanrights.gov.au

Last updated 2 December 2001.