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Annual Report 2002-2003: Chapter 3

Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003

Chapter 3: Legal Services

The primary responsibilities of the Legal Section for the 2002–03 financial year were to:

  • Assist the President and/or the Human Rights Commissioner in the preparation of notices and reports under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
  • Act as instructing solicitor for the Commission in interventions in legal proceedings.
  • Act as instructing solicitor for the Commissioners in applications to appear as amicus curiae in legal proceedings.
  • Act as counsel or instructing solicitor for the Commission in external litigation such as applications for review of Commission decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
  • Provide internal legal advice on discrimination, human rights and other laws relevant to the work of the Commission.
  • Assist the Commission to examine enactments or proposed enactments under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
  • Assist the Commission to consider applications for exemptions under the Sex Discrimination Act 1984 (Cth).
  • Respond to applications under the Freedom of Information Act 1982 (Cth) on behalf of the Commission.
  • Assist the Commission in the preparation of its report on the National Inquiry into Children in Immigration Detention.
  • Monitor the development of the anti-discrimination law jurisprudence in the Federal Court and Federal Magistrates Service. Since 13 April 2000 jurisdiction to hear matters terminated by the President lies with the Federal Court and the Federal Magistrates Service.
  • Assist in the preparation of submissions to Senate Inquiries and committees, especially where the Commission’s core legislation is involved.
  • Represent the Commission externally in providing information and education on human rights matters, and to
  • Represent the Commission in international project work.

Complaints relating to breaches of human rights or discrimination in employment made under the Human Rights and Equal Opportunity Commission Act

Where a complaint is made under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging breaches of human rights and discrimination in employment, the President or his delegate may report to the Attorney-General where conciliation cannot resolve the matter and an inquiry has satisfied the President there has been a breach of human rights or discrimination in employment. The Legal Section assists the President or his delegate to inquire into the complaints and prepare reports to the Attorney-General.

Between 1 July 2002 and 30 June 2003, the following reports were tabled in Parliament by the Minister pursuant to this Commission function (the full reports are available at

www.humanrights.gov.au/legal/reports_hreoca.html

HREOC Report No. 19

Report of an inquiry into a complaint by Mr Mark Hall against the NSW Thoroughbred Racing Board (August 2002)

Mr Hall lodged a complaint with the Commission alleging discrimination in his employment and occupation on the ground of his criminal record. That complaint arose after the Board prevented Mr Hall from working for Ms Gai Waterhouse of Gai Waterhouse Racing Stables as a stablehand from about 28 April 1999 and refused to issue him with a stablehand licence on or about 21 June 1999. Mr Hall alleged that the reason, or one of the reasons, for the Board’s refusal to allow him to continue working as a stablehand and its refusal to issue him with a licence, was his criminal record.

In response, the Board claimed that the decision was not made on the basis of Mr Hall’s criminal record but on other grounds, in particular Mr Hall’s failure to disclose his criminal record. Alternatively, the Board relied upon the inherent requirements exception to discrimination.

Commissioner Ozdowski found that Mr Hall had been discriminated against on the ground of his criminal record and that the inherent requirements exception did not apply.

The Commissioner made the following recommendations in relation to the payment of compensation to Mr Hall and in relation to the prevention of a repetition of the relevant acts and/or a continuation of the relevant practices:

  • that the Board pay to Mr Hall the amount of $33 303.05 (plus interest), and
  • that the Board conduct a review of its processes regarding the use of criminal records, having regard to the following matters:
  • the definition of discrimination in section 3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
  • the broader human rights context, including relevant international law obligations such as those contained in article 17 of the International Covenant on Civil and Political Rights, and
  • the need to develop clear written guidelines regarding the procedures of the Board for the use of criminal record, which reflect those matters.

As at the date of the report, the Commission had no knowledge that any action had been taken or was being taken by the Board as a result of the recommendations or findings.

HREOC Report No. 20

Report of an inquiry into a complaint by Ms Renai Christensen against Adelaide Casino Pty Ltd of discrimination in employment on the basis of criminal record (July 2002)

This Report is of an inquiry into a complaint by Ms Renai Christensen alleging that she was discriminated against by Adelaide Casino Pty Ltd (Adelaide Casino) when she sought employment as a bar attendant in October 2000. Adelaide Casino rejected Ms Christensen’s application for employment at the final stage of the selection process because its security representative declined to certify that Ms Christensen was a ‘fit and proper person’ to be employed, a requirement of the Casino Act 1997 (SA). Adelaide Casino was of the view that the circumstances of a larceny offence committed by Ms Christensen as a juvenile (some seven or eight years earlier) meant that she did not meet the requirements of trustworthiness and good character.

The former President of the Commission found that Adelaide Casino had discriminated against Ms Christensen on the basis of her criminal record.

In particular, the former President found that:

  • the term ‘criminal record’ encompasses not only the actual record of a conviction but also the circumstances of a conviction
  • the decision to exclude Ms Christensen from the final stage of the selection process constitutes a distinction made on the basis of her criminal record, which had the effect of nullifying her equality of opportunity or treatment in employment
  • trustworthiness and good character are inherent requirements of the job of bar attendant. However, in the circumstances of this complaint (including Ms Christensen’s work history since the conviction), the connection between the rejection of Ms Christensen’s application on the basis of her criminal record and those requirements is not sufficiently close.

The former President recommended that Adelaide Casino apologise to Ms Christensen for rejecting her application as a bar attendant because of her juvenile conviction and not further exclude her from applying for employment because of that conviction.

In response to these findings and recommendations Adelaide Casino stated that it maintained its view that there was no inappropriate discrimination and advised it would not be taking any action in response to the findings and recommendations.

HREOC Report No. 21

Report of an inquiry into a complaint by six asylum seekers concerning their transfer from immigration detention centres to State prisons and their detention in those prisons

This Report concerns an inquiry into breaches of the International Covenant on Civil and Political Rights by the Department of Immigration and Multicultural and Indigenous Affairs, (DIMIA), on behalf of the Commonwealth. The complaint was made by Amnesty International on behalf of six men seeking asylum in Australia. Each of the detainees was held in immigration detention pursuant to section 189 of the Migration Act, initially in an Immigration Detention Centre (IDC). The complaint concerned the transfer of the detainees from the IDCs in which they were held to state correctional facilities (state prisons), and the continued detention of the detainees in those prisons. Amnesty alleged, on behalf of the detainees, that this transfer, and the continued detention of the detainees in the state prisons was a breach of their human rights.

The former President found:

  • the transfer of one asylum seeker from an IDC to a state prison was an act by DIMIA which was inconsistent with, and contrary to, the asylum seekers’ human rights recognised in article 9(1) of the International Convention on Civil and Political Rights
  • the decision to continue the detention of two of the asylum seekers in Western Australian state prisons was an act by DIMIA which was inconsistent with, and contrary to, their human rights recognised in article 9(1) of the International Convention on Civil and Political Rights
  • the decision of DIMIA to transfer one of the asylum seekers to a state prison from a detention centre, and the failure by DIMIA to consider the rape of the asylum seeker during monthly reviews of his imprisonment, were acts by the Australian Government which were inconsistent with, and contrary to, his human rights recognised in article 10(1) of the International Convention on Civil and Political Rights
  • the failure by DIMIA to provide separate treatment for the six asylum seekers while they were held in immigration detention in New South Wales and West Australian state prisons was inconsistent with, and contrary to, their human rights recognised in article 10(2)(a) of the International Convention on Civil and Political Rights.

Of the six complainants, one was deported and one removed from Australia in April 2000. The Commission made a number of recommendations in the Report to prevent a repetition of the relevant acts and the continuation of the relevant practices.

DIMIA provided a response to those recommendations, stating that it did not agree with the findings made by the former President and thus did not propose to take any action in relation to the recommendations made.

HREOC Report No. 22

Report of an inquiry into a complaint by Mr XY concerning his continuing detention despite having completed his criminal sentence

This Report concerns an inquiry into a complaint lodged by Mr XY alleging that the continuing and indefinite nature of his detention amounts to a breach of his rights under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides as follows:

“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”.

The complainant came to Australia in February 1982 and was granted permanent residency in July 1988. He was born in Germany, though claimed he was a stateless person of no nationality. The complainant was convicted of criminal offences in Australia, and served his criminal sentence in Western Australia. He was served with a deportation order by DIMIA on 23 July 1997. Mr XY completed his criminal sentence on 11 June 2000 and since that date was detained pursuant to section 253 of the Migration Act 1958 (Cth). This provides that if a person is subject to a deportation order, then they may be detained in immigration detention pending their deportation. Negotiations took place between DIMIA and the Polish Government in an attempt to deport the complainant to Poland. However, DIMIA advised in a letter dated 25 June 2002 that negotiations with Poland had ceased as the Polish Government would not issue the complainant with a certificate of Polish citizenship. In that letter, DIMIA also advised that negotiations with the German Government for the complainant’s possible deportation to Germany, which had commenced as early as 1997, were continuing. At the date that the Report was issued by the former President in October 2002, Mr XY continued to be detained pursuant to section 253 of the Migration Act 1958 at the Perth IDC.

The former President of the Commission found that negotiations with Germany, if ever entered into by the German Government, had stagnated, and there was no evidence to confirm the likelihood of Mr XY’s deportation to that country. She was of the view that the complainant’s detention had been indeterminate since some time in 2001, and most certainly was indeterminate by March 2002 when the Polish Government confirmed that it would not accept him, and that this amounted to arbitrary detention. The former President therefore found that the continued detention of Mr XY was in breach of article 9(1) of the International Convention on Civil and Political Rights. She recommended that Mr XY be released from detention pending deportation, and that the Commonwealth of Australia pay him financial compensation in the amount of $45 000.

On 23 September 2002, the Commission wrote to DIMIA to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations of the former President. In a letter to the Commission dated 8 October 2002, an officer of DIMIA provided comments and stated that as DIMIA did not accept the former President’s findings it did not propose to take any action on the basis of her findings or recommendations.

HREOC Report No. 23

Report of an inquiry into a complaint by Mr Hassan Ghomwari concerning his immigration detention and the adequacy of the medical treatment he received while detained (October 2002)

This inquiry related to a complaint by Mrs Kylie Ghomwari on behalf of her husband Mr Hassan Ghomwari. Mr Ghomwari was placed in Villawood Immigration Detention Centre (VIDC) after DIMIA discovered that he had overstayed his visitor visa. A decision was made to transfer him to the Metropolitan Reception and Remand Centre (MRRC) at Silverwater. While there, Mr Ghomwari contracted Hepatitis B. Mrs Ghomwari asserted that the human rights of her husband were breached in two ways:

  • Mrs Ghomwari alleged that her husband did not receive appropriate medical assistance for his Hepatitis B after his return to the VIDC, and
  • Mrs Ghomwari criticised the conditions of her husband’s detention at the MRRC, and in particular that he was held with, and received the same treatment as, convicted prisoners in the MRRC.

The former President found that article 10(1) of the International Convention on Civil and Political Rights had been breached. In particular, she found that:

  • the level and quality of medical services provided by the Australian Government to Mr Ghomwari after his return to the VIDC on 8 May 2000 did not meet minimum international standards and was inconsistent and contrary to his human rights recognised in article 10(1), and
  • the failure by the Australian Government to provide Mr Ghomwari with a regime of separate treatment while he was held in immigration detention in the MRRC was inconsistent with, and contrary to, his human rights recognised in article 10(2)(a).

The former President recommended that the Australian Government pay compensation in the amount of $26 500 and take immediate steps to comply with its obligations under article 10(1) in respect of the medical services provided to persons in immigration detention in all immigration detention centres in Australia. DIMIA did not accept the former President’s findings, arguing that it already complied with its obligations under article 10(1) in respect of medical services provided to persons in detention, and as a result, did not state what action it had taken or proposed to take in relation to any of the recommendations.

HREOC Report No. 24

Report of an inquiry into complaints by five asylum seekers concerning their detention in the separation and management block at the Port Hedland Immigration Reception and Processing Centre (PHIRPC) (December 2002)

Amnesty International Australia complained that the asylum seekers’ human rights were violated when they were placed in the Separation and Management Block within the PHIRPC (known as Juliet or ‘J’ block), on 1 December 2000 and held there for six and a half days.

The former President of the Commission did not find that the initial transfer of the asylum seekers to ‘J’ block was in breach of their human rights.

However, the former President found that:

  • the Commonwealth’s detention of the asylum seekers in ‘J’ block for six and a half days constituted arbitrary detention within the meaning of article 9(1) of the International Convention on Civil and Political Rights, and
  • the conditions of detention accorded to the asylum seekers while they were held in ‘J’ block breached their right to be treated with humanity and respect for their inherent dignity under article 10(1) of the International Convention on Civil and Political Rights.

The former President recommended that the Australian Government:

  • pay compensation to each of the asylum seekers for the violation of their rights under articles 9(1) and 10(1) of the International Convention on Civil and Political Rights of $25 000, and a further $10 000 in compensation on account of the aggravated circumstances
  • apologise to each of the asylum seekers in writing
  • take all steps to ensure that the conditions of detention in any form of segregated detention area meet minimum standards of humane treatment as required by article 10(1), and
  • take all steps necessary to implement all the recommendations of the Security Risk Management Report commissioned by the Commonwealth after the incident, including the development of policies and procedures setting out the process for at least daily review of segregated detention, and the grounds for maintaining segregated detention.

DIMIA did not indicate what, if any, action it was going to take in relation to the first and second recommendation. In relation to the third recommendation, it indicated that while it does take all steps to ensure compliance with article 10(1) of the ICCPR, there were some failures to comply with operating policies and procedures at the time and while these failures were not a breach of article 10(1), they would not occur again as an improved system had been put in place since the alleged breaches. In relation to recommendation four, DIMIA indicated that the Security Risk Management Report has “informed the Department’s thinking and assisted in its program of continuous improvement across all centres”.

HREOC Report No. 25

Report of an inquiry into a complaint by Mr Mohammed Badraie on behalf of his son Shayan regarding acts or practices of the Commonwealth of Australia (the Department of Immigration and Multicultural and Indigenous Affairs)

This Report concerned a complaint alleging acts or practices inconsistent with, or contrary to, the Convention on the Rights of the Child. Those acts or practices occurred in connection with the detention of the complainant’s son at Woomera Immigration Reception and Processing Centre and the Villawood Immigration Detention Centre with his family.

The former President found that a number of the acts and practices complained of were inconsistent with, or contrary to, the following articles of the Convention on the Rights of the Child:

  • article 3(1) of the Convention on the Rights of the Child, which provides that in all actions concerning children the best interests of the child shall be a primary consideration
  • article 19(1) of the Convention on the Rights of the Child, which, among other things, obliges Australia to take positive steps to protect children from physical and mental violence
  • article 37(c) of the Convention on the Rights of the Child, which provides that every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age, and
  • article 37(b) of the Convention on the Rights of the Child, which, among other things, provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily and that the arrest, detention or imprisonment of a child shall be for the shortest appropriate period of time.

The former President recommended that compensation in the amount of $70 000 be paid by the respondent and that a written apology be furnished on behalf of the respondent, by the Minister for Immigration and Multicultural and Indigenous Affairs. The former President indicated that those recommendations reflected the serious nature of the breaches involved in this matter. As at the date of the Report, to the Commission’s knowledge, the respondent had not taken any action in response to those recommendations.

The former President also made other recommendations aimed at preventing a repetition of the relevant acts and/or a continuation of the relevant practices. The respondent provided material which indicated that it had taken certain steps which partially addressed some of those matters.

External litigation

Interventions

The Commission has the power to intervene, with leave of the Court, in proceedings that involve issues of race, sex, marital status, pregnancy and disability discrimination, human rights issues and equal opportunity in employment. The power to seek leave to intervene is contained in the:

  • Racial Discrimination Act 1975 (Cth), section 20(1)(e)
  • Sex Discrimination Act 1984 (Cth), section 48(1)(gb)
  • Disability Discrimination Act 1992 (Cth), section 67(1)(l)
  • Human Rights and Equal Opportunity Commission Act 1986 (Cth), sections 11(1)(o) and 31(j).

The Commission will consider seeking leave to intervene in cases where the human rights or discrimination issues are significant and central to the proceedings, and where these issues are not being addressed by the parties to the proceedings. The guidelines that the Commission uses to determine if it will seek leave to intervene in a matter are publicly available on the Commission’s website at www.humanrights.gov.au/legal/intervention_info.html

The relevant Court handed down the following decisions during the 2002–03 financial year.

Attorney-General for the Commonwealth v Kevin and Jennifer

A summary of the Commission’s involvement in this matter is detailed in the 2001–02 Annual Report, available on the Commission’s website at www.humanrights.gov.au /annrep01_02/.

The Full Court of the Family Court handed down its decision on 21 February 2003. The Full Court considered that the central issue to be considered was whether it was open to Justice Chisholm to find that at the date of the marriage between Kevin and Jennifer, Kevin (a post-operative transsexual person who was registered at birth as a female) was a man within the meaning of the Marriage Act. The Court made clear that the issue of whether a marriage can occur between people of the same sex was not in issue in this case, and that the status of pre-operative transsexual people was not directly in issue.

The Commission’s submissions in this matter focused on the international human rights principles it considered relevant to the issues before the Court, general principles of statutory construction under Australian law, especially in relation to the interpretation of certain aspects of the Marriage Act, and the application of those principles to the grounds of appeal. A full copy of those submissions are at www.humanrights.gov.au/legal/guidelines/

submission_kevin_jennifer.html.

The judgment necessarily dealt with a wide range of issues. The following points, however, can be highlighted:

  • the words “man” and “marriage” as used in the Marriage Act should bear their contemporary ordinary everyday meaning
  • in considering what the contemporary everyday meaning of the words “man” and “woman” were, the Court considered the English case of Corbett v Corbett [1971] P83 which held that an individual’s sex is determined at birth by reference to an examination of three biological factors, that is, chromosomes, gonads and genitals. The Full Court did not find the reasoning in Corbett to be persuasive, and found that it does not represent the law in Australia. It agreed with Justice Chisholm’s view that a range of factors are relevant to the consideration of determining a person’s sex for the purposes of marriage law, such as their cultural sex, social acceptance and ‘brain sex’
  • the Court referred extensively to the Commission’s submissions concerning the human rights issues relevant to the case and stated that ‘we should say that we were most indebted to the Commission for its assistance, which proved very helpful to us in considering this matter’.

At the time of this report, the Attorney-General had not sought special leave to appeal to the High Court in this matter.

Ming Dung Luu v Minister for Immigration and Multicultural Affairs

The Commission’s involvement in this matter prior to this financial year can be found on the Commission’s website at www.humanrights.gov.au/annrep01_02/ and www.humanrights.gov.au/annrep00_01/.

The proceedings involve the application for judicial review of a decision of the Minister for Immigration and Multicultural Affairs (the “Minister”) to detain Mr Luu in immigration detention in a maximum security prison, pending his deportation, following his parole in relation to a serious assault charge. Section 253(9) of the Migration Act 1958 (Cth) allows the Minister to release people who are detained in immigration detention pending deportation. The Minister determined not to exercise his power to release Mr Luu or revoke the deportation order. Mr Luu’s application for that decision to be judicially review was dismissed by Justice Marshall and during the last financial year, the Full Court handed down its decision dismissing Mr Luu’s appeal from that decision.

In its submissions at first instance and on appeal, the Commission focussed upon matters arising from the Minister’s decision under section 253(9). The Commission’s submissions can be found at www.humanrights.gov.au/legal/guidelines/submissions_luu.html and www.humanrights.gov.au/legal/guidelines/submission_

mingdungluu.html. In summary, amongst other things, the Commission’s submissions were dealt with by the Court as follows:

  • Whether the detention of Mr Luu pending deportation should be construed as being subjects to certain limits which were relevantly activiated in this matter. The Full Court did not rule out the possibility that there may be some implied upper temporal limit on the power to detain a person subject to a deportation order but held that any such limit was not breached in circumstances where it had been found as a fact (by Justice Marshall) that the Minister was able to give a reasonably specific approximation of when Mr Luu was able to be deported
  • Whether Australia’s treaty obligations under articles of the International Covenant on Civil and Political Rights were a relevant consideration for the respondent in making a decision under section 253(9) of the Migration Act 1958 (Cth) whether to release the appellant from immigration detention. Justice Marshall considered (and the Full Court was prepared to assume) that such obligations may be relevant considerations for the purposes of the exercise of the discretion under section 253(9) of the Migration Act 1958 (Cth). However, any requirement to have regard to those obligations did not give rise to reviewable error in light of Justice Marshall’s findings of fact regarding the Minister’s views on the likelihood of deportation
  • Whether, upon its proper construction, section 253(9) of the Migration Act 1958 (Cth) permitted the Minister to have regard to “the protection of the Australian community” in making the decision to maintain the appellant in immigration detention. The Full Court considered but did not accept the Commission’s submissions regarding this issue.

Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors

In May 2002, the High Court granted leave to the Commission to intervene in an appeal brought by Members of the Yorta Yorta Aboriginal Community against the decision of the Full Court of the Federal Court. The Full Court had upheld the decision of the primary judge, dismissing the applicants’ native title claim. The claim, which related to land in south-western New South Wales and north-western Victoria, involved the first application for determination of native title to come on for trial after the enactment of the Native Title Act 1993 (Cth).

The central issue before the High Court was the construction of the definition of ‘native title’ in section 223 of the Native Title Act 1993. Under that section, ‘native title’ is defined, in part, as the rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or water possessed under the traditional laws acknowledged and customs observed by those peoples.

The Commission’s submissions are available at https://humanrights.gov.au/our-work/legal/summary-interventions-australian-human-rights-commission The Commission submitted that the provisions of the Native Title Act 1993 should be construed consistently with the following human rights principles: equality before the law in articles 2 and 5 of the International Convention on the Elimination of all forms of Racial Discrimination and article 26 of the International Covenant on Civil and Political Rights; the rights of Indigenous minorities to enjoy their culture in article 27 of the International Covenant on Civil and Political Rights; and, freedom of religion in article 18 of the International Covenant on Civil and Political Rights. The Commission’s submissions emphasised that, consistent with these human rights principles, the inquiry as to the existence of native title should commence with consideration of the claimant group’s current acknowledgment and observance of laws and customs and whether that has a traditional basis. That is, tradition should be viewed from the perspective of the present, rather than from an historical perspective which requires the claimants to show that laws and customs have been handed down from generation to generation.

On 12 December 2002 the Court by a majority of five to two dismissed the appeal. Their Honours were satisfied there was no continued acknowledgment and observance of laws and customs and the forebears of the claimants had ceased to occupy their lands in accordance with those laws and customs.

NAAV v Minister for Immigration and Multicultural Affairs and NABE v Minister for Immigration and Multicultural Affairs

The Commission was given leave to intervene in the hearing of these two appeals by a Full Court of the Federal Court (comprised of Chief Justice Black and Justice Beaumont, Wilcox, French and von Doussa).

The common issues in each appeal concerned the construction and validity of the so called “privative clause” amendments inserted in the Migration Act 1958 (Cth) following the MV Tampa incident. Those amendments were introduced with the stated purpose of significantly reducing the availability of judicial review of administrative decisions made under the Migration Act 1958 (Cth) and under the Migration Regulations 1994 (Cth).

The Commission’s full submissions can be found at www.humanrights.gov.au/legal/guidelines/submission_naav.html. The Commission argued that the Court should adopt a generous interpretation of the privative clause such that a broader category of jurisdictional error would provide a basis for seeking judicial review. The key concept underlying the Commission’s submissions was:

  • that the Australian legal system recognises, in various ways, an obligation to provide an effective remedy to persons present in this country whose interests have been adversely affected by a decision of an officer of the Australian Government, where the decision is otherwise than in accordance with law
  • in the alternative, the Commission contended that the clause was constitutionally invalid in that judicial power was being conferred upon decision-makers under the Migration Act 1958 (Cth) or that if the Refugee Review Tribunal’s decisions, which involved jurisdictional error, were protected by the privative clause, the amendments constituted an impermissible intrusion by Parliament into the exercise of judicial power.

The five judges of the Full Court delivered separate judgments. All members of the Court accepted that the privative clause is valid. The majority view (Chief Justice Black and Justice Beaumont and von Doussa) was that while the amendments to the legislation do not prevent access to the Courts, they leave little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds. Justice Wilcox and French were of the view that the amendments do not operate to restrict judicial review as substantially as the Minister contended.

Both NABE and NAAV have sought special leave to appeal to the High Court and the application is to be heard on 12 September 2003.

Leave granted to intervene in the financial year

During 2002–03, the Commission was granted leave to intervene in six matters. Summaries of those matters follow:

Ainsworth Game Technology v Song

The Commission was granted leave to appear as intervener by the Full Federal Court in this matter. The matter was an appeal from a decision of the Federal Magistrates Court.

The case concerned a female employee, Ms Song, who sought flexible work hours to enable her to leave work in the afternoon and pick-up/drop-off her child from kindergarten. Ms Song was told by her employer that she would have to work part-time if she wished to leave work for this purpose and would not be able to take a late lunch break as she had requested.

The applicant’s complaint of discrimination on the basis of family responsibilities (section 14(3A) of the Sex Discrimination Act 1984 (Cth)) was upheld by Raphael FM. The Magistrate found that unilaterally altering the employee’s employment from full-time to part-time amounted to a “dismissal” for the purposes of the section, and that the employee had discriminated against Ms Song in requiring her to work part-time. The Court ordered that Ms Song be reinstated to her former employment and that her employment agreement be varied to permit her to take her lunch break from 2.55pm to 3.25pm.

The employer appealed, challenging both the decision in relation to the meaning of “dismissal” and the power of the Magistrate to make the order he did relating to her hours of employment. The Commission made written and oral submissions on the meaning of “dismissal” in section 14(3A). The submissions argued that a broader definition of that term, such that it includes constructive dismissal as in the present case, is correct and consistent with the beneficial nature of the Sex Discrimination Act.

The parties were encouraged by the Full Court to enter into further negotiation to resolve the case at the conclusion of submissions. The matter was subsequently settled prior to the delivery of judgment by the Full Court.

Ashmore Reef Inquest

The Commission was granted leave to appear as intervener at this inquest in November 2002 into the deaths of two female asylum seekers.

The two women had travelled from Indonesia on board a boat, the “Sumbar Lestari”, with 158 other asylum seekers (the majority being from Afghanistan) and four crew members. It was their intention to reach Ashmore Reef and seek asylum in Australia. On 8 November 2001, the boat was sighted by an Australian Customs Vessel a short distance outside Australian waters. In accordance with ‘Operation Relex’ (part of the Government’s Border Protection Policy), it was ordered to stop and was handed a warning notice. It continued into Australian waters and was soon boarded by members of the Royal Australian Navy. Shortly after this boarding occurred there was an explosion on the boat and it caught fire. All people on board the boat were evacuated as the boat sank and the Customs and Navy personnel began a rescue operation. Two women, Ms Fatimah Husseini and Ms Nurjan Husseini drowned in this evacuation as neither could swim.

At the Inquest into their deaths, the Commission sought to raise relevant international human rights issues and, in particular, the right to life. The Commission focussed on whether the Australian Customs Vessel and the Royal Australian Navy were adequately equipped to deal with a Safety Of Life At Sea (SOLAS) situation and whether their focus on border protection issues compromised their ability to do so. The Commission’s full submissions are available at www.humanrights.gov.au/legal/ashmore/leave_intervene.html.

Importantly, and against the submission of the Commonwealth, the Coroner appeared to accept that article 6 of the International Covenant on Civil and Political Rights applies to asylum seekers outside of Australian territory and “enjoins the State not only to refrain from intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction”.

The Coroner found that the cause of death of the two deceased women was immersion (drowning) after they were forced into the water on 8 November 2001 when their boat caught on fire.

Graincorp v Markham

This matter was an appeal to a Full Bench of the Australia Industrial Relations Commission (AIRC) against a decision of Commissioner Blair that the termination of the employment of the respondent, Mr Markham, was harsh, unjust or unreasonable. The basis for the termination was conduct of Mr Markham which had occurred at a training course in which he was alleged to have sexually harassed a colleague, Ms Barton. Mr Markham had engaged in an aggressive and sexually derogatory outburst which related to Ms Barton while he was in a hotel room adjoining hers. It was claimed by Mr Markham that his outburst was not directed to Barton and that he did not know she was in her room at the time.

Commissioner Blair had found that the actions of Markham were unsatisfactory but did not amount to sexual harassment.

The Commission was granted leave by the AIRC to intervene and made oral and written submissions on the question of sexual harassment. The Commission’s submissions can be located at www.humanrights.gov.au/legal/guidelines/

submission_markham.html.

The Commission submitted that Commissioner Blair had erred in attempting to equate several phrases Mr Markhan had made and that the context of the words was relevant in determining whether or not they amounted to sexual harassment. The Commission argued that the words amounted to “sex-based harassment”, which may constitute sexual harassment or sex discrimination depending upon the context.

The Commission further submitted that Commissioner Blair had erred in holding that sexual harassment needed to be “directly directed” at its “target” and that there needs to be an intent to harass.

The submission also emphasised the broader context of equality of opportunity in employment in determining what constitutes “harsh, unjust and unreasonable” termination. In this context, the Commission submitted that sex-based harassment (whether it falls within the definition of sexual harassment or not) enforces and perpetuates modes of behaviour that should not be seen as acceptable in light of the international standards to which Australia has committed itself.

The AIRC upheld the appeal and found that the termination was not harsh, unjust or unreasonable. They found that, in the context of the conduct, sexual harassment had taken place. The AIRC departed from some of the factual findings of Commissioner Blair in some important respects and disagreed with his key findings as to the nature of sexual harassment. In particular, the AIRC confirmed that it is not necessary to have an “intent to harass” the relevant test is whether or not a reasonable person, having regard to all the circumstances, would have anticipated offence, humiliation or intimidation.

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri

This matter involved consideration of section 196 of the Migration Act 1958 (Cth).

Mr Al Masri is a Palestinian asylum seeker from the Gaza strip whose application for a protection visa was refused by a delegate of the Minister and the Refugee Review Tribunal. Mr Al Masri asked the Minister to return him to the Gaza Strip. Officers of the Minister’s department were unable to meet that request as Israel, Egypt and Jordan refused to cooperate. The department had also tried (and failed) to remove Mr Al Masri to Syria.

At first instance, Justice Merkel found that there was no prospect of Mr Al Masri being removed in the reasonably foreseeable future and therefore ordered his release from detention. After Mr Al Masri was released, negotiations with Israel resulted in an agreement that allowed the Minister to effect his removal to the Gaza Strip. In a further decision, Justice Merkel ruled that it was permissible for Mr Al Masri to be taken back into immigration detention on the basis that it had become possible to effect Mr Al Masri’s removal. Mr Al Masri was then detained and subsequently removed. The Minister nevertheless continued with an appeal against Justice Merkel’s initial decision and the Commission was granted leave to intervene in the appeal.

The Full Federal Court (comprised of Chief Justice Black, Justice Sundberg and Weinberg) dismissed the Minister’s appeal and awarded costs to the respondent. The Court found that the power under section 196 of the Migration Act 1958 (Cth) to detain was subject to limitations which, on the facts before the Court, had been exceeded, making Mr Al Masri’s detention unlawful.

The Court noted that the central issue in the appeal was whether the power and duty of the Minister to detain an unlawful non-citizen, who had no entitlement to a visa but who had asked to be removed from Australia, continued even when there was no real likelihood or prospect of that person’s removal in the reasonably foreseeable future. The Court held in relation to the following matters (all of which were the subject of submissions by the Commission which can be found at www.humanrights.gov.au/legal/intervention/almasri.html):

  • clear words are required before a statute can be construed as removing a fundamental right which in this case was the right to personal liberty. Their Honours agreed with Justice Merkel’s conclusion that the power to detain under section 196 of the Migration Act 1958 (Cth) is subject to an implied limitation.
  • the Full Court stated that it was “fortified” in that conclusion by reference to the principle that section 196 should, so far as language permits, be interpreted and applied in a manner consistent with established rules of international law and which accords with Australia’s treaty obligations.

The Minister has since filed an application for special leave to appeal to the High Court.

Minister for Immigration and Multicultural and Indigenous Affairs v VFAD

The respondent to this appeal is an Afghan asylum seeker who was detained at Curtin Immigration Reception and Processing Centre in Western Australia. The respondent lodged an application for review with the Refugee Review Tribunal when he was advised that his application for a protection visa had been refused.

The respondent’s lawyers made a Freedom of Information application for copies of all documents on the respondent’s departmental file. When the file was produced to the respondent’s solicitors, they discovered a document headed ‘Protection Visa Decision Record’ granting the respondent a protection visa. That document was signed by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs but its contents had never been communicated to the respondent. The Minister contended that that document represented a “draft assessment” and not the final decision.

The respondent commenced proceedings in the Federal Court seeking a declaration that the respondent had been granted a protection visa and was a lawful non-citizen. The respondent also sought, by way of interlocutory relief, an order that pending the hearing and determination of his application he be released from immigration detention. Justice Merkel heard that application at first instance and ordered that the Minister be restrained from continuing to detain the respondent in immigration detention. The Minister appealed that decision to the Full Federal Court and the Commission was granted leave to intervene in the hearing of the appeal.

The central issues on appeal focussed upon whether the power to make interlocutory orders could be exercised to order the release, until final hearing of the substantive matter, of persons in immigration detention, or whether the Minister was correct in submitting that that power had been withdrawn since the introduction of section 196(3) of the Migration Act 1958 (Cth).

The Full Federal Court unanimously dismissed the Minister’s appeal.

Their Honours expressly or implicitly accepted the majority of the Commission’s submissions which can be found at www.humanrights.gov.au/legal/intervention/vfad.html. In particular, their Honours accepted the Commission’s submission that Parliament had not made “unmistakably clear” its intention to abrogate the power of the Court to protect a fundamental freedom by ordering the release in appropriate circumstances, on an interlocutory basis, of persons in detention who have seriously arguable claims to be lawful non-citizens and thus to have their liberty.

The Court further noted that it was “fortified” in its conclusion by reference to the principle that that section 196 should, so far as language permits, be interpreted and applied in a manner consistent with established rules of international law and which accords with Australia’s treaty obligations. The Commission had submitted (and the Court accepted) that articles 2(3), 9(1) and 9(4) of the International Covenant on Civil and Political Rights were relevant in that context.

S134/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

This matter (which was heard by the High Court in conjunction with the matter of S157/2002 v Commonwealth) dealt with the construction and validity of the so called “privative clause” amendments inserted in the Migration Act 1958 (Cth) following the Tampa incident. Those amendments were discussed above in relation to the matters of NAAV and NABE.

Broadly speaking, there were two issues to be decided by the High Court:

  • whether the privative clause and associated provisions were constitutionally valid, and
  • if so, how the privative clause and associated provisions should be construed.

The Commission made submissions only on the construction of the privative clause and these submissions can be located at www.humanrights.gov.au/legal/guidelines/submission_s134.html.

The High Court handed down separate decisions in the two matters. The more significant decision is that handed down in S157/2002, where the Court found that the privative clause and associated provisions were constitutionally valid. However, the Court rejected a submission made by the Minister for Immigration and Multicultural and Indigenous Affairs and the Commonwealth in which it was suggested that the privative clause had reduced all otherwise mandatory requirements of the Migration Act 1958 (Cth) and Regulations to the status of “mere guidelines”. In a joint judgment, Justice Gaudron, McHugh, Gummow, Kirby and Hayne held that a breach of the express or implied conditions and limitations imposed by the Migration Act 1958 (Cth) will be reviewable if such a breach amounted to a jurisdictional error.

Their Honours did not provide exhaustive guidance as to what classes of error would be reviewable. Those issues will now need to be determined on a case-by-case basis, with the Courts considering the particular power being exercised and the wording of the statutory provisions in question.

Chief Justice Gleeson and Justice Callinan (in separate judgments) substantially agreed with the joint judgment. However, Justice Callinan appeared to put the threshold test to be made out by an applicant for judicial review of a migration decision somewhat higher than the majority, referring to a need to show a “manifest error of jurisdiction”.

Amicus curiae

Section 46PV of Human Rights and Equal Opportunity Commission Act provides that the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Human Rights Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner may, with permission of the Federal Court or Federal Magistrates Service, seek to appear as amicus curiae (or friend of the Court) in the hearings of complaints that have been terminated by the President. The proceedings in which the relevant Commissioner or Commissioners can exercise this function are proceedings:

  • in which the Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings
  • that, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act or Acts administered by the Commission
  • that involve special circumstances that satisfy the Commissioner that it would be in the public interest for the Commissioner to assist the court concerned as amicus curiae.

Guidelines for the exercise of this function are publicly available on the Commission’s website at

www.humanrights.gov.au/legal/amicus_info.html.

There were two matters in the financial year in which a Commissioner appeared as amicus curiae. Those matters are:

Access for All Alliance (Hervey Bay) v Hervey Bay City Council

The Access for All Alliance alleges disability discrimination in the provision of services by the Hervey Bay City Council. The particular services which are the subject of the complaint are:

  • an outside entertainment area at a local community centre is said to be inaccessible to people with mobility disabilities because it lacks a ramp which complies with Australian Standards (in terms of gradient, handrails and curbrails) and is alleged to lack an area (such as a concrete ‘pad’) from which people with mobility disabilities can enjoy entertainment provided at the centre
  • certain toilet blocks in the Hervey Bay area effectively inaccessible by virtue of the placement of handbasins on the outside of the blocks, making them inappropriate for use by persons with bodily function aids who may need to use the handbasins as part of their toileting routine, and
  • concrete picnic tables on the Scarness Foreshore Development fail to allow access for mobility impaired members of the Alliance because the fixed chairs do not contain a gap sufficient to enable access.

The matter was heard by Federal Magistrate Baumann from 2–5 June. The Acting Disability Discrimination Commissioner was granted leave to appear as amicus curiae and made written and oral submissions on:

  • the correct approach to statutory construction in the context of the Disability Discrimination Act 1992 (Cth)
  • the importance of dignity and amenity in determining whether or not a person can, for the purposes of the Disability Discrimination Act 1992 (Cth), comply with a relevant requirement or condition and whether or not it is ‘reasonable’
  • the interpretation of the defence of ‘unjustifiable hardship’ under sections 23(2) and 24(2) of the Disability Discrimination Act 1992 (Cth), the test for which is set out in section 11 of the Disability Discrimination Act 1992 (Cth) and its relationship with the concept of ‘reasonableness’ in section 6, and
  • the relationship between Australian Standards, the Building Code of Australia (‘the BCA’) and the Disability Discrimination Act 1992 (Cth), including the relevance of the Australian Standards and the BCA in determining the ability of persons with a disability to comply with a requirement or condition, and the concept of ‘reasonableness’ under section 6.

As at the end of the financial year, the decision of Federal Magistrate Baumann was reserved.

 

Trudy Gardner v All Australia Netball Association (AANA)

The respondent AANA imposed an interim ban preventing pregnant women from playing netball in the Commonwealth Bank Trophy, the national tournament which they administered. The applicant was pregnant when the ban was imposed and was prevented from playing in a number of matches as a result. She complained of discrimination on the basis of her pregnancy in the provision of services under section 22 of the Sex Discrimination Act 1984 (Cth). The service in this case was the opportunity to participate in the competition as a player.

AANA accepted that it had discriminated against Ms Gardner, but argued that its actions were protected by the exemption contained in section 39 of the Sex Discrimination Act 1984 (Cth) which provides that it is not unlawful for a voluntary body to discriminate “in connection with” the provision of services to members. It was not disputed at the hearing that AANA is a voluntary body for the purposes of the Sex Discrimination Act 1984 (Cth), membership of which consisted of State and Territory netball associations. Individual netballers were not eligible to be members of AANA. The issue of dispute was whether or not the exemption under section 39 applied in the present case.

The Sex Discrimination Commissioner was granted leave to appear as amicus curiae in the proceedings and made submissions as to the correct construction of section 39. The submissions of the Commissioner argued for a narrow approach to the section, consistent with the objects of the Sex Discrimination Act 1984 (Cth). It was argued that the section should only provide protection for discriminatory acts taking place within the membership of a voluntary body – it should not enable discrimination against non-members or the public at large.

Federal Magistrate Raphael decided that exemption in section 39 did not apply to the actions of AANA. He held that it provided protection for voluntary bodies only in their relationships with their members, but not in their relationships with non-members. Ms Gardner was not, and could not be, a member of AANA. The words “in connection with” could not extend the exemption in the manner argued by the respondent and accordingly the actions of AANA constituted unlawful discrimination under the Sex Discrimination Act 1984 (Cth).

Damages of $6 750 (a sum agreed by the parties) and costs were awarded to Ms Gardner.

Applications under the Administrative Decisions (Judicial Review) Act

The Commission, or a member of the Commission, is often a party in judicial review legal proceedings. These legal proceedings occur when the Commission is named as a respondent in matters where an application has been made to the Federal Court or the Federal Magistrates Service seeking judicial review of a decision made by the Commission, the President or a Commissioner. These reviews can be sought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In accordance with established legal principle, the Commission (as decision maker) usually submits to the jurisdiction of the Court in these matters, leaving the substantive parties (usually the complainant and respondent to the complaint that was before the Commission) to present the matter to the Court. In a very small number of matters, submission to the jurisdiction of the Court is not practicable – in which case the Commission has appeared, but has in these matters, attempted to assist the Court rather than act in a way that would appear contentious or adversarial.

The numbers of applications made under Administrative Decisions (Judicial Review) Act 1977 (Cth) for the years 1995–2002 are shown in the table below. The significant decrease in the number of judicial review matters in which the Commission is a party in the financial years of 2000–01, 2001–02 and 2002–03 are the result of the Commission’s hearing and determination function in relation to complaint of unlawful discrimination ceasing in April 2000 when it was assumed by the Federal Court and Federal Magistrates Service.

Table 32: Trends in numbers of Administrative Decisions (Judicial Review) Act applications where the Commission is named as respondent

 
Year
1996–97
1997–98
1998–99
1999–00
2000–01
2001–02
2002–03
Total
11
35
19
22
13
4
7

A significant case under the Administrative Decisions (Judicial Review) Act 1977 (Cth) that the Commission has been involved in during 2002–03 is the matter of:

Alexander Purvis (on behalf of Daniel Hoggan) v State of New South Wales (Department of Education) and Human Rights and Equal Opportunity Commission

On 13 November 2000, Hearing Commissioner Innes found that the Department of Education had directly discriminated against Daniel Hoggan on the basis of his disability by exclusion of Daniel Hoggan from school, and by some other acts and omissions concerning the Department’s management of him while attending the school.

The Department appealed the decision to the Federal Court. The Commission submitted to the jurisdiction of the Court and did not play an active role in the proceedings. On 29 August 2001, Justice Emmett held that the Commission had erred in law in various respects, and set the decision aside.

The Legal Aid Commission, acting for Mr Purvis, then appealed the decision to the Full Federal Court. The Commission continued to submit to the jurisdiction of the Court. The appeal was heard on 19 February 2002. In its decision dated 24 April 2002, the Full Federal Court (Justice Spender, Gyles and Conti) dismissed the appeal and ordered the appellant (but not the Commission) to pay the department’s costs.

The applicant filed an application seeking special leave to appeal the decision of the Full Federal Court to the High Court. The special leave application was heard in Sydney on 5 November 2002. The Court granted the applicant special leave to appeal to the Full Bench of the High Court.

The High Court heard this matter on 29–30 April 2003. The Commission made both oral and written submissions to the Court. In summary, the Commission made submissions on:

  • the definition of “disability” in the Disability Discrimination Act 1992 (Cth)
  • the meaning of less favourable treatment in section 5(1) of the Disability Discrimination Act 1992 (Cth)
  • the meaning of “different accommodation or services” in section 5(2) of the Disability Discrimination Act 1992 (Cth)
  • the proper interpretation of section 22 of the Disability Discrimination Act 1992 (Cth) (discrimination in education).

All parties made additional written submissions in relation to issues that arose during the course of the hearing. The additional submissions of the Commission further addressed the interpretation of section 5 of the Disability Discrimination Act.

As at the date of this report, the Court had reserved its decision.

The applicant filed an application seeking special leave to appeal the decision of the Full Federal Court to the High Court. The special leave application was heard in Sydney on 5 November 2002. The Court granted the applicant special leave to appeal to the Full Bench of the High Court.

The High Court heard this matter on 29–30 April 2003. The Commission made both oral and written submissions to the Court. In summary, the Commission made submissions on:

  • the definition of “disability” in the Disability Discrimination Act 1992 (Cth)
  • the meaning of less favourable treatment in section 5(1) of the Disability Discrimination Act 1992 (Cth)
  • the meaning of “different accommodation or services” in section 5(2) of the Disability Discrimination Act 1992 (Cth)
  • the proper interpretation of section 22 of the Disability Discrimination Act 1992 (Cth) (discrimination in education).

All parties made additional written submissions in relation to issues that arose during the course of the hearing. The additional submissions of the Commission further addressed the interpretation of section 5 of the Disability Discrimination Act.

As at the date of this report, the Court had reserved its decision.

Review of Federal Anti-Discrimination

Jurisdiction 2000–2002

During the financial year, the Legal Section completed a major project titled Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction. This project was a review of the unlawful discrimination jurisdiction of the Federal Court and Federal Magistrates Service (FMS) for the period September 2000 to September 2002.

The impetus for the project was the transfer on 13 April 2000 of the function for the hearing of complaints of unlawful discrimination under the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) from the Commission to the Federal Court and the FMS. This change to the administration of federal unlawful discrimination law was met with some trepidation by sections of the community who feared that the development of jurisprudence in the area would be compromised by a more legalistic approach by the judiciary and that the capacity of the FMS and the Federal Court to make costs orders would result in applicants, often already in a position of vulnerability, as a matter of course being burdened with the costs of the respondent if their proceedings were not successful.

In that context, the Commission undertook to review the operation of the new jurisdiction for a two year period from the date of the first decision being handed down (13 September 2000 to 13 September 2002) so as to:

  • assess the nature of the jurisprudence that was emerging from the FMS and the Federal Court in respect of unlawful discrimination law, so as to inform itself of developments in the law
  • enable it to more fully consider concerns that the transfer of the jurisdiction would result in the law being interpreted in a more conservative fashion than it was by the Commission
  • consider the manner in which interlocutory applications, procedural and evidentiary matters were being dealt with by the FMS and the Federal Court, and
  • analyse statistically the costs orders that were being made by the FMS and the Federal Court and the principles that were being applied in the making of such orders.

In summary, the review made the following conclusions:

  • to the extent that it is possible to comment on jurisprudential trends after only two years, the interpretation and development of the law under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) by the Federal Court and FMS was largely consistent with the principles that had been developed by the Commission and the courts that reviewed its decisions during the duration of its jurisdiction
  • some principles under the Disability Discrimination Act 1992 (Cth) have been interpreted by the FMS and the Federal Court in a more restrictive manner since the jurisdiction was transferred. However, that more restrictive approach has taken place in the context of the administrative law review of a decision of the Commission (being the matter of Purvis v State of New South Wales referred to above). This matter would have proceeded regardless of whether the Commission did or did not retain its hearing function. In those circumstances, it is not necessarily correct to attribute any narrowing of the relevant principles under the Disability Discrimination Act 1992 (Cth) to the transfer of jurisdiction to the FMS and Federal Court, and
  • where an applicant was unsuccessful in proceedings substantively relating to an application arising out of a complaint of unlawful discrimination, the FMS and the Federal Court did not order, as a matter of course, that the unsuccessful applicant pay the costs of the respondent. The FMS did so in 64 percent of decisions made during the review period and the Federal Court did so in 50 percent of decisions.

A full copy of the review is available at www.humanrights.gov.au/legal/review/.

International project work

Technical cooperation project with the South African Commission on Gender Equality

As reported in previous Annual Reports, the Commission has been working on a technical cooperation project with the South African Commission on Gender Equality (CGE). The Legal Section has been involved in one aspect of that project which relates to legal intervention. The aim of that part of the project is to improve the capability of the CGE to participate effectively in relevant litigation in South Africa concerning gender related issues.

In September/October 2002, CGE staff attended the offices of the Commission in Sydney and had the opportunity to see, first hand, how the Commission conducts its own intervention and amicus practice. Members of the Commission’s Legal Section also presented a series of structured seminars highlighting particular aspects of the Commission’s intervention/amicus work.

Secondment to Malaysian Human Rights Commission

At its inaugural meeting in 1996, the members of the Asia Pacific Forum of National Human Rights Institutions highlighted the desirability of staff exchanges as a means of advancing the promotion and protection of human rights across the Asia Pacific region.

The aims of the staff exchange program included the:

  • development of skills and knowledge of the staff of forum member institutions
  • implementation of specific activities for both the Secretariat and member institutions, and
  • enhancement of the regional nature of the forum’s work.

As part of this program, a staff exchange was agreed upon between the Commission and Malaysia (SUHAKAM). From 27 February to 19 March 2003, a senior legal officer of the Commission undertook a placement at SUHAKAM (situated in Kuala Lumpur) and from 24 March to 11 April 2003, a senior legal officer of SUHAKAM undertook a placement at the Commission, primarily within the Legal Section and the Sex Discrimination Unit of the Commission.

Other activities

During 2002–03, staff members of the Legal Section undertook a range of external activities. These included:

  • presenting seminars in Sydney, Melbourne, Canberra, Adelaide, Perth and Brisbane in conjunction with the relevant Law Societies on the findings of Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction
  • attending the Commonwealth Law Conference in Melbourne, Gilbert & Tobin Centre of Public Law Constitutional Law Conference and Gilbert & Tobin Centre of Public Law Conference on a Bill of Rights
  • accompanying the Human Rights Commissioner to meetings of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights in Geneva
  • presenting a lecture to the Malleson’s Human Rights Interest Group on Human Rights Law in Australia, and
  • participating in the Attorney General’s Core Consultative Group on the development of federal age discrimination law.