HREOC - Annual Report 2001 - 2002:Chapter 3: Legal Services

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

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Chapter 3: Legal Services

The primary responsibilities of the Legal Section for the 2001-02 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).

• Schedule and facilitate the hearing of outstanding matters under the Commission's former inquiry function.
• 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.

• 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.
• Represent the Commission in international project work.

Hearings by the Commission

The Commission's jurisdiction to hear and determine complaints of unlawful discrimination ceased on 13 April 2000 with the commencement of the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) and was transferred to the Federal Court and Federal Magistrates Service. The Commission retained the jurisdiction to complete those public inquiries that had commenced prior to 13 April 2000.

During 2001-02, the last of those public inquiries, being three in total, were finalised. No determinations were issued in relation to these matters as one matter settled and the other two matters were terminated by the President as a result of the Federal Court decision in Kowalski v Domestic Violence Crisis Service [2001] FCA 1082 (10 August 2001).

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 her 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 her delegate to issue Notices of findings, consider submissions and prepare reports to the Attorney-General.

Between 1 July 2001 and 30 June 2002, the following reports were tabled in Parliament by the Minister pursuant to this function:

HREOC Report No. 14

Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force (January 2002)

This Report is of an inquiry conducted prior to the commencement of the Human Rights Legislation Amendment Act 1999 (No.1) (Cth) by the former Human Rights Commissioner. The inquiry dealt with a complaint of discrimination in employment concerning discrimination on the ground of age against the Commonwealth of Australia (Australian Defence Force). The Human Rights Commissioner found that the Australian Defence Force had discriminated against Mr Hamilton on the basis of his age.

In particular, the Human Rights Commissioner found that:

• in placing the complainant in Promotion Band D at the June 1995 Promotion Board the respondent engaged in an act of age discrimination
• the decision to place the complainant in Promotion Band D was based on a distinction, exclusion or preference on the ground of age which had the effect of nullifying or impairing the complainant's equality of opportunity or treatment in employment or occupation
• the distinction, exclusion or preference was not based on the inherent requirements of the job.

HREOC Report No. 15

Report of an inquiry into a complaint by Ms Elizabeth Ching concerning the cancellation of her visa on arrival in Australia and subsequent mandatory detention (February 2002)

This Report is of an inquiry into a complaint by Ms Ching that her human rights were breached when she was questioned by Department of Immigration and Multicultural Affairs (DIMA) officials on her arrival at Brisbane airport, and her subsequent custody at the Brisbane Women's Correctional Centre. The President found that some aspects of Ms Ching's treatment were inconsistent with or contrary to her human rights.

In particular, the President found that:

• the act by an officer of DIMA of requiring Ms Ching to provide a response to the notification of the likely cancellation of her visa within a period of ten minutes was in breach of the requirement in article 13 of the International Covenant on Civil and Political Rights ("ICCPR") which provides that an applicant be allowed to submit the reasons against expulsion.

• the act by an officer of DIMA not to advise Ms Ching that she was able to seek legal advice or assistance had the effect that Ms Ching was not able to exercise her rights pursuant to article 13 of the ICCPR to have her case reviewed before a competent authority and to be represented for the purpose of having her case reviewed before a competent authority and therefore amounts to an act which is inconsistent with or contrary to her human rights.

HREOC Report No. 16

Report of an inquiry into a complaint by Mr Hocine Kaci of acts or practices inconsistent with or contrary to human rights arising from immigration detention (May 2002)

This Report concerns an inquiry into a complaint made by an asylum seeker, (Mr Kaci), who had been transferred from an immigration detention centre to a remand centre as a result of alleged unacceptable behaviour. Mr Kaci alleged that the conditions in which he was detained were contrary to the ICCPR. The President found that the conditions of Mr Kaci's detention were in breach of article 10(2) of the ICCPR.

In particular, the President found that:

• asylum seekers in immigration detention, as unconvicted persons, should be treated in a different manner to convicted prisoners. Article 10(2) of the ICCPR obliges Australia to ensure that unconvicted persons are subject to separate treatment appropriate to their status
• unconvicted persons in detention are entitled to a "special regime" of treatment as outlined in Part II, Section C of the UN Standard Minimum Rules for the Treatment of Prisoners.

HREOC Report No. 17

Report of an inquiry into a complaint by the Asylum Seekers Centre concerning changes to the Asylum Seekers Assistance Scheme (May 2002)

This Report concerns an inquiry into a complaint by the Asylum Seekers Centre alleging that changes to the Asylum Seekers Assistance Scheme made by the Department of Immigration, Multicultural and Indigenous Affairs had breached the human rights of people seeking asylum in Australia. The first changes complained of produced the result that asylum seekers are no longer eligible for the Scheme if their application is being reviewed by the Refugee Review Tribunal. New criteria governing exemptions from the Scheme's waiting period were also introduced. Further revision of the criteria for exemption from the waiting period was made a short time after the initial changes. The Human Rights Commissioner found that the changes made to the Asylum Seekers Assistance Scheme were in breach of articles 3 and 24(2)(d) of the Convention on the Rights Of the Child ("CROC") and article 26 of the ICCPR.

In particular, the Human Rights Commissioner found that:

• the best interests of the child were not a primary consideration in making the changes to the scheme, and thus article 3 of CROC had been breached
• at a minimum, Australia is required to provide all pregnant women with ongoing assistance and information in relation to their pregnancy. The changes to the scheme resulted in a number of pregnant asylum seekers being denied "appropriate prenatal care", and the changes were in breach of article 24(2)(d) of the ICCPR
• the changes to the scheme were discriminatory and in breach of article 26 of the ICCPR.

HREOC Report No. 18

Report of an inquiry into a complaint by Mr Duc Anh Ha of acts or practices inconsistent with or contrary to human rights arising from immigration detention (May 2002)

This Report concerns an inquiry into a complaint made by Mr Ha, an immigration detainee, regarding his transfer to a maximum security prison, and his subsequent detention in that prison. The President found that his transfer to a maximum security prison, and his subsequent detention in that prison, was contrary to articles 9(1), 10(1) and 10(2)(a) of the ICCPR.

In particular, the President found that:

• the lack of access to recreational facilities, locking of Mr Ha in his cell for 22 hours a day, denial of an opportunity to work, and failure to provide time to exercise all amounted to a breach of article 10(1) of the ICCPR
• the transfer of Mr Ha to a maximum security prison, and failure to accord him treatment appropriate to his status as an unconvicted person constituted a breach of article 10(2)(a) of the ICCPR
• the failure to consider whether or not Mr Ha could be segregated from convicted prisoners was in breach of article 10(2)(a) of the ICCPR
• Mr Ha's detention was arbitrary, unjust and inappropriate in the circumstances, and thus in breach of article 9 of the ICCPR.

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.

During 2001-02, the Commission was granted leave to intervene in nine matters. Summaries of seven of those matters follow:

NAAV & NABE v Minister for Immigration and Multicultural Affairs

The Commission was granted leave to intervene in this matter which was heard by a five member bench of the Federal Court in Melbourne on 3-5 June 2002.

The central issue was the construction of the "privative clause" inserted into section 474 of the Migration Act 1958 ( Cth) which commenced operation on 2 October 2001. This provides that a "privative clause" decision (including, relevantly, a decision of the Refugee Review Tribunal ("RRT")):

• is final and conclusive
• must not be challenged, appealed against, reviewed, quashed or called in question in any court
• is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

In his case, the appellant claimed that he had been denied procedural fairness by the RRT. The RRT was said to have misunderstood the appellant's claims of persecution and therefore failed to address them. In both cases, the appellants submitted that the errors went to the jurisdiction of the RRT and that the privative clause in section 474 of the Migration Act did not operate to prevent an appeal on the basis of the types of jurisdictional error of which they complained.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/submission_naav.html

At the time of this report the Court has reserved its decision.

Attorney-General for the Commonwealth v Kevin and Jennifer

On 8 February 2002, the Full Court of the Family Court granted leave to the Commission to intervene in the appeal by the Attorney-General against the judgment of Justice Chisholm on 12 October 2001. In that judgment, his Honour declared valid the marriage between Kevin (a post-operative female to male transsexual person) and Jennifer. Both parties had accepted that a valid marriage for the purposes of the Marriage Act 1961 (Cth) must be between a "man" and a "woman". The issue in dispute was whether Kevin is a "man" for the purposes of that Act.

The Commission sought to intervene concerning the relevance of principles of international human rights law in considering the interpretation of the word "man" in the Marriage Act . Leave to intervene was sought for the following principles: the guarantees of equality before the law and non-discrimination in articles 2(1) and 26 of the ICCPR; the right to marry and found a family in article 23 of the ICCPR; and; the right not to be subject to arbitrary or unlawful interference with a person's privacy and family in article 17(1) of the ICCPR. The Commission submitted that these principles supported the conclusion reached by the Justice Chisholm, that Kevin is a "man" for the purposes of the law of marriage.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/submission_kevin_jennifer.html

At the time of this report the Court's decision remains reserved.

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

In May 2002, the High Court heard an appeal in the Yorta Yorta native title claim relating to land in south western NSW and north western Victoria. The initial claim was dismissed in December 1998, with the trial judge ruling that the ancestors of the Yorta Yorta people had lost their culture to such an extent that native title could no longer be recognised. An appeal from this decision was dismissed by the Full Federal Court in February 2001. The Yorta Yorta people appealed the Full Federal Court's decision to the High Court.

The Commission was granted leave to intervene in the proceedings before the High Court.

The Commission submitted that wherever the language of the statute permits a construction which is consistent with the terms of a relevant international instrument and the obligations which it imposes on Australia, then the Court should adopt that construction. The strong presumption is that the Native Title Act 1993 (Cth) should be construed in conformity with the provisions of relevant human rights treaties and the interpretative jurisprudence of human rights treaty bodies.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/yorta_yorta.html

At the time of this report, the Court's decision remains reserved.

Peter Martizi v Minister for Immigration, Multicultural and Indigenous Affairs Simon Odhiambo v Minister for Immigration, Multicultural and Indigenous Affairs

The Commission was granted leave to intervene in these proceedings, which were heard together before the Full Federal Court on 24 April 2002. The Commission was represented by Senior Counsel before the Court and made written and oral submissions. The Legal Section of the Commission acted as instructing solicitors.

These proceedings involved a review of the decisions of the RRT in relation to Mr Odhiambo and Mr Martizi ("the appellants"). At the time of their respective RRT hearings, both of the appellants were "unaccompanied minors", that is, they were under 18 years of age and did not have any person in Australia to care for them. Both of the appellants had been detained in Port Hedland Immigration Reception and Processing Centre since their arrival in Australia.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/submission_martizi.html

On 20 June 2002, the Full Court handed down its decision. The appeal was dismissed as, amongst other matters, the Court found the absence of a guardian for the appellants did not cause them any disadvantage in their RRT hearings.

The Court, however, noted that there may be a conflict between the role of the Minister as guardian of unaccompanied minors and his role in administering the Migration Act . This is because the person administering the Migration Act, the Minister, has an interest in resisting challenges to decisions of his delegates and decisions of the RRT that uphold delegates' decisions. That interest is directly opposed to the interests of an asylum seeker in setting aside a decision unfavourable to him or her.

The appellants are currently considering whether to make an application to the High Court for special leave to appeal against this decision.

Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs and Ors Eric Vadarlis v Minister for Immigration and Multicultural Affairs and Ors ("The Tampa Case")

The Commission was granted leave to intervene in these proceedings before the Federal Court, Full Federal Court and High Court (27 November 2001).

The primary issue in these proceedings was the lawfulness of the actions of the Commonwealth Government concerning the 433 asylum seekers who were rescued by the MV Tampa from their sinking boat on or about 26 August 2001. The Commonwealth Government sought to prevent the asylum seekers from entering the migration zone in Australia as they did not have valid visas to do so. To this end, the Government:

• did not permit the MV Tampa to enter the port on Christmas Island

• did not permit the asylum seekers to leave the ship except to leave Australian territorial waters
• through SAS officers, controlled the movements of the asylum seekers on the ship
• did not permit the asylum seekers to communicate with persons off the ship or persons off the ship to communicate with them.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/tampa.html and www.humanrights.gov.au/legal/guidelines/tampa2.html

On 11 September 2001, Justice North in the Federal Court found that the Commonwealth had detained without lawful authority the asylum seekers rescued by MV Tampa . He ordered the Commonwealth to release those asylum seekers and bring them to a place on the mainland of Australia.

The Commonwealth appealed against this decision to the Full Court of the Federal Court. On 17 September 2001, by a majority comprising Justices Beaumont and French, that Court determined that the appeals should be allowed and set aside the orders made by Justice North. The majority judges concluded that the Commonwealth was acting within its executive power under section 61 of the Constitution in the steps it took to prevent the landing of the rescuees. The majority has also concluded that the rescuees were not detained by the Commonwealth nor did they have their freedom restricted by anything that the Commonwealth did.

Chief Justice Black dissented. He took the view that whilst the power to expel people entering Australia illegally is undoubted, it is a power that derives only from laws made by the Parliament and not from powers otherwise exercisable by the Executive Government. He took the view that since the powers provided in the Migration Act were not relied upon, the Commonwealth Government had no power to detain those rescued from the Tampa. He considered that on the facts of the case there was a detention by the Commonwealth and that since it was not justified by the powers conferred by the Parliament under the Migration Act it was not justified by law. He was therefore of the opinion that the appeal should be dismissed.

On 27 November 2001, Mr Vadarlis made an application to the High Court seeking special leave to appeal against the majority decision of the Full Federal Court. He also sought to challenge the validity of parts of the Border Protection (Validation and Enforcement Powers) Act 2001 which was passed after the Full Court decision was delivered (the relevant parts of this Act purported to render all Commonwealth action relating to the Tampa lawful).

The High Court refused Mr Vadarlis' application. While the High Court found that the issues in this case raised important constitutional questions, there had been a change in the factual circumstances since the Full Court hearing (as the asylum seekers were no longer on a ship controlled by the Commonwealth but in Nauru). The Court indicated that this rendered the arguments on appeal hypothetical and made it difficult to determine what orders the Court should make if the applicants were successful.

Ming Dung Luu v Minister for Immigration and Multicultural Affairs

As reported in the 2000-01 Annual Report, in June 2001 the Commission intervened in proceedings in the Federal Court involving a review of a decision of the Minister for Immigration and Multicultural Affairs.

That decision related to Mr Ming Dung Luu, who was the subject of a deportation order made by the Minister following his conviction on a serious assault charge. Mr Luu was sentenced by the Victorian County Court to a maximum of three years and six months imprisonment in relation to that charge. After being paroled (on 18 June 1997), Mr Luu was placed in immigration detention pending his deportation. The Department of Immigration and Multicultural Affairs determined that Mr Luu should be detained in a maximum security prison rather than in an immigration detention centre.

Mr Luu sought to have the Minister exercise his discretion under section 253(9) of the Migration Act to release him or, alternatively, revoke the original deportation order. After Mr Luu commenced Court proceedings in the Federal Court, the Minister determined not to exercise his power to release Mr Luu or revoke the deportation order. Mr Luu sought judicial review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth), of that decision (and certain other matters).

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/submissions_luu.html

Since the 2000-01 Annual Report, Justice Marshall (the judge at first instance) handed down his decision in which he dismissed the application of Mr Luu. In relation to the issues raised by the Commission regarding arbitrary detention, his Honour found on the facts for the Minister on the basis of the Minister's understanding of the state of negotiations with Vietnam in relation to a Memorandum of Understanding. The purpose of the Memorandum was said to be to facilitate the deportation to Vietnam of people in Mr Luu's position. His Honour found that the Minister's understanding of those negotiations meant that he was able to give a: "reasonably specific approximation of when Mr Luu was likely to be deported".

Mr Luu has since appealed to the Full Federal Court. The Commission made further oral and written submissions (available at www.humanrights.gov.au/legal/guidelines/submissions_luu.html ) and the decision is reserved as at the date of this report.

Re McBain; Ex Parte Australian Catholic Bishops' Conference and Another, Human Rights and Equal Opportunity Commission and others intervening

In this case, the High Court considered applications (brought in the court's original jurisdiction) to quash a decision of Justice Sundberg, a Judge of the Federal Court of Australia.

In the proceedings before Justice Sundberg, Dr McBain (a gynaecologist) sought a declaration that certain provisions of the Infertility Treatment Act 1995 (Vic) were inoperative because they were inconsistent with the Sex Discrimination Act 1984 (Cth).

The applicants (the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church) were not parties to the action in the Federal Court, but had been granted leave to be heard as amici curiae . The parties to the Federal Court action did not appeal Justice Sundberg's decision.

The Commission, along with the Women's Electoral Lobby and the Australian Family Association, was granted leave to intervene in the High Court proceedings. The Commonwealth also intervened.

The Commission's submissions in this case can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/hcaivf1.html

The High Court unanimously dismissed the applications. The majority (Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne) accepted the Commission's submissions on the first issue, holding that the High Court did not have jurisdiction to consider the applications because they did not give rise to a matter within the meaning of Chapter III of the Constitution . The other members of the Court agreed that the application should be dismissed, but on different grounds.

None of the members of the Court gave any detailed consideration to issues raised in the proceedings regarding the validity and interpretation of the Sex Discrimination Act.

Amicus curiae

Section 46PV of the Human Rights and Equal Opportunity Commission Act 1986 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.

There was one matter completed in the financial year 2001-02 in which the Sex Discrimination Commissioner was amicus curiae . That was the matter of Ferneley v Boxing Authority of NSW and State of NSW.

Ferneley v Boxing Authority of NSW and State of NSW

On 26 October 2001, Justice Wilcox granted the Sex Discrimination Commissioner leave to appear as amicus curiae in the above matter. The hearing took place before Justice Wilcox on 8 November 2001.

The applicant, Ms Ferneley, a kick boxer, wanted to be able to compete in New South Wales where she resides. However, in order to do so, she had to register as a kick boxer under the Boxing and Wrestling Control Act 1986 (NSW). However section 8(1) of the Act provides that only men (above the age of 18 years) can register as a boxer. In addition, section 62D of the Act provides that women shall not take part in any amateur boxing contest.

The Commissioner appeared as amicus curiae solely in relation to the interpretation of the exemption in section 42 of the Sex Discrimination Act , although at the hearing on 8 November 2001, Justice Wilcox was willing to hear brief submissions on other aspects of the case.

The Sex Discrimination Commissioner's submission can be found on the Commission's website at www.humanrights.gov.au/legal/guidelines/amicus_ferneley_case.html

Justice Wilcox's decision was handed down on 10 December 2001. He dismissed the applicant's application on the basis that section 22 of the Sex Discrimination Act does not apply to this case. He found that section 18 of the Sex Discrimination Act applies to this case, which makes it unlawful for authorities empowered to confer an authorisation or qualification needed for engaging in an occupation to discriminate on the basis of sex. Section 18 does not bind the Crown in right of the State and therefore the actions of the Boxing Authority were not unlawful.

Despite this finding, Justice Wilcox made findings in relation to section 42 of the Sex Discrimination Act. He agreed with the submissions of the Commissioner and held that section 42(1) is concerned only with mixed sex sporting activity.

Applications under the Administrative Decisions (Judicial Review) Act

The Commission or a member of the Commission is sometimes 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 this Act 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 and 2001-02 are the result of the Commission's hearing and determination function in relation to complaints of unlawful discrimination ceasing in April 2000 when it was assumed by the Federal Court and Federal Magistrates Service.

Table 35: Trends in numbers of Administrative Decisions (Judicial Review) Act applications where the Commission is named as respondent

International technical assistance work

This work is done on behalf of the Australian Agency for International Development (AusAID) and implemented by the Commission.

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 the Commission's 2000-01 Annual Report, we discussed completion of one component, involving two staff members of the legal section attending the offices of the CGE in Johannesburg in June 2001. The end product of that activity was the development of a draft procedural manual, including guidelines for assessing appropriate matters for intervention by the CGE and a procedural strategy for conducting interventions.

In February 2002, we followed up on that activity, by leading and facilitating a workshop attended by Commission staff and stakeholders of the CGE. In that workshop the draft procedural manual was presented, discussed and finalised.

A further activity is planned for later this year. This time, CGE staff will attend the offices of the Commission in Sydney and have the opportunity to see, first hand, how the Commission conducts its own intervention practice.

Workshop on human rights theory and practice in Australia and Vietnam

The Legal Section participated in preparing and presenting a paper at this workshop in Hanoi organised by the Research Centre for Human Rights in the Ho Chi Minh National Political Academy and the Centre for Asian and Pacific Law in the University of Sydney.

The purpose of the Workshop was to facilitate an exchange of ideas and theories on human law and practice in Vietnam and Australia. Over two days, a series of papers were presented including presentations titled The Australian Justice System and Human Rights Protection, Vietnam's Traditional values of human rights, Australian Human Rights: Common Law Heritage and The role of international law in developing Human Rights Law in National Legal Systems.

Other activities

During 2001-02, staff of the Legal Section undertook a range of external activities. These included the following:

Publications

• Contributing an article entitled Human Rights and Equal Opportunity Commissioners as Amici Curiae for publication in Law Society journals around Australia.

• Presenting a paper at the National Conference of Community Legal Centres in Perth entitled The Intervention and Amicus Curiae Functions of the Human Rights and Equal Opportunity Commission and Its Commissioners.

• Providing a paper titled Proscription of Hate Speech in Australia to the XVIth Congress of the International Academy of Comparative Law.

• Conferences and workshops
• Being facilitators at the National Youth Summit on Racism and at a consultation towards the World Conference on Racism, Race Discrimination, Xenophobia and Related Intolerance.
• Attending a meeting of the Asia Pacific Forum of National Human Rights Institutions in Sri Lanka.
• Attending as an observer the Workshop for Judges on Justiciability of Economic, Social and Cultural Rights in South Asia in New Delhi.
• Attending the National Legal Officers Conference for State, Territory and Federal Anti-Discrimination Bodies.

• Attending the Alternative Law Week at the University of Sydney and the Alternative Law Fair at the University of Technology Sydney to discuss with current law students the career opportunities that are available at the Commission.