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AusHRC 47: Mr Heyward v Commonwealth of Australia (Department of Immigration and Citizenship)

2011

Mr Heyward v Commonwealth of Australia (Department of Immigration and Citizenship)

Report into arbitrary detention, the right of people in detention to protection of the family and freedom from arbitrary interference with the family

[2011] AusHRC 47

September 2011

The Hon Robert McClelland
MP

Attorney-General

Parliament House

Canberra ACT 2600

Dear Attorney

I attach my report of an inquiry into the complaint made pursuant to
sК11(1)(f)(ii) of the Australian Human Rights Commission Act 1986 (Cth) by Mr Heyward.

I have found that the acts and practices of the Commonwealth breached Mr
Heyward’s right not to be subject to arbitrary detention and his right to
protection of, and freedom from arbitrary interference with, his family. These
fundamental human rights are protected by articles 9(1), 17(1) and 23(1) of the
International Covenant on Civil and Political Rights.

By letter dated 20 July 2011 the Department of Immigration and Citizenship
provided the following responses to my findings and recommendations:

The Department’s response on behalf of the Commonwealth of
Australia to the findings and recommendations of the AHRC with regard to Mr
Julian Heyward

1. That the Commonwealth provide a formal written apology to Mr Heyward
for the breaches of his human rights identified in the report.

The Department disagrees with this recommendation.

Mr Heyward did not hold a valid visa to remain lawfully in Australia due to
the cancellation of his visa under section 501 of the Migration Act 1958 (the
Act). His immigration detention was therefore lawful in accordance with section
189 of the Act. The Minister considered the circumstances of Mr Heyward’s
case under section 417 of the Act and decided it was not in the public interest
to intervene.

Australian Human Rights Commission

Level 3 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney, NSW 1042

Telephone: 02 9284 9600 Facsimile: 02 9284 9611 Website:
www.humanrights.gov.au

With regard to Mr Heyward’s placement while in immigration detention,
his case was not referred to the Minister under section 197AB as he withdrew
from the litigation relating to his Protection visa refusal and his removal from
Australia became imminent.

The Department advises the Commission that there will be no action taken with
regard to this recommendation.

2. That the Commonwealth pay financial compensation in the amount of
$200,000 to Mr Heyward.

While we note your findings, in the Department’s view Mr Heyward was
detained lawfully in accordance with the Act and his detention was not
arbitrary.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

Pursuant to the Australian Human Rights Commission Act 1986 (Cth)
please find enclosed a copy of my report.

Yours sincerely

Catherine Branson

President

Australian Human Rights Commission

Contents

1 Introduction

This is a report setting out the findings of the Australian Human Rights
Commission (the Commission) and the reasons for those findings following an
inquiry by the Commission into a complaint lodged by Mr Julian Heyward that his
treatment by the Department of Immigration and Citizenship (DIAC) involved acts
or practices inconsistent with or contrary to human rights.

2 Summary

2.1 Summary of
findings

I have found that the human rights of Mr Heyward were breached by the actions
of DIAC.

(a) Detention in
Villawood Immigration Detention Centre

I have found that the prolonged detention of Mr Heyward in Villawood
Immigration Detention Centre (VIDC) was not proportionate to the
Commonwealth’s legitimate purpose of regulating immigration into
Australia.

Mr Heyward could have been detained in the community whilst he pursued his
appeal rights. There was no adequate justification for keeping Mr Heyward in
VIDC because he was involved in proceedings which, when exhausted, might have
led to his removal from Australia. Accordingly, Mr Heyward’s detention in
VIDC was arbitrary in breach of the prohibition of arbitrary detention in
article 9 of the International Covenant on Civil and Political Rights
(ICCPR).

(b) Interference with and
protection of the family

I have found that the interference with Mr Heyward’s family occasioned
by his detention was not reasonable and was not proportionate to the legitimate
aim of DIAC of protecting the community from non-citizens who pose a risk to the
community.

Accordingly I have found that the failure to place Mr Heyward in a less
restrictive form of immigration detention arbitrarily interfered with his family
in breach of articles 17 and 23 of the ICCPR.

(c) Treatment in
detention

I was not provided with evidence to suggest that Mr Heyward experienced
exacerbating factors beyond the condition of detention sufficient to establish a
breach of article 10 of the ICCPR.

Accordingly, I have found that there is insufficient evidence to substantiate
a breach of article 10 of the ICCPR in relation to Mr Heyward’s treatment
in immigration detention.

2.2 Summary of
recommendations

In light of my findings regarding the acts and practices of the Commonwealth
I make the following recommendations:

That the Commonwealth provide a formal written apology to Mr Heyward for the
breaches of his human rights identified in this report.

That the Commonwealth pay financial compensation in the amount of $200
000.

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3 The complaint by Mr
Heyward

3.1 Background

On 21 July 2010 Mr Heyward complained to the Commission that the failure of
the Minister to place him in a less restrictive form of detention than VIDC
amounted to breaches of articles 9(1), 10(1), 17(1) and 23(1) of the ICCPR.

Both Mr Heyward and the Commonwealth have provided submissions in this
matter.

Mr Heyward and the Commonwealth have also had the opportunity to respond to
my letter of 22 February 2011 which set out the acts or practices raised by the
complaint that appeared to be inconsistent with or contrary to human rights.

My function in investigating complaints of breaches of human rights is not to
determine whether the Commonwealth has acted consistently with Australian law
but whether the Commonwealth has acted consistently with the human rights
defined and protected by the ICCPR.

It follows that the content and scope of the rights protected by the ICCPR
should be interpreted and understood by reference to the text of the relevant
articles of the international instruments and by international jurisprudence
about their interpretation.

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3.2 Findings of
fact

I consider the following statements about the circumstances which have given
rise to Mr Heyward’s complaint to be uncontentious.

Mr Heyward entered Australia in 1987 on a Visitor visa. He was granted a
Dependant Spouse visa in 1992 which continued in effect as a Transitional
Permanent visa from 1994.

In 1992 Mr Heyward was convicted of two counts of assault to police. He was
fined $650 and placed on a two year good behaviour bond. In 1996 he was
convicted of driving with a low prescribed blood alcohol limit and was fined
$250 and disqualified from driving for two months. In 1997 Mr Heyward was found
to be driving whilst unlicensed and was fined $100. He was also found to have
breached an Apprehended Violence Order that had been made against him. On
17 November 2003 Mr Heyward was convicted of maliciously wounding with
intent to commit murder and was sentenced to nine years and four months
imprisonment with a non-parole period of six years and four months.

On 5 March 2009 a delegate of the Minister cancelled Mr Heyward’s visa
on character grounds under s 501 of the Migration Act 1958 (Cth)
(Migration Act). On 15 March 2009 Mr Heyward was released from prison and
was placed in VIDC.

On 31 July 2009 Mr Heyward requested that he be placed in community
detention. Mr Heyward remained in VIDC until he was removed from Australia on 10
January 2011.

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4 The Commission’s
human rights and inquiry and complaints function

Section 11(1)(f) of the Australian Human Rights Commission Act (AHRC
Act) gives the Commission the function of inquiring into any act or practice
that may be inconsistent with or contrary to any human right and certain related
functions. Section 8(6) of the AHRC Act provides that the functions of the
Commission under s 11(1)(f) shall be performed by the President.

Section 20(1)(b) of the AHRC Act requires the Commission to perform the
functions referred to in s 11(1)(f) when a complaint is made to it in writing
alleging that an act or practice is inconsistent with or contrary to any human
right.

4.1 The Commission can
inquire into acts or practices of the Commonwealth

The expressions ‘act’ and ‘practice’ are defined in s
3(1) of the AHRC Act to include an act done or a practice engaged in ‘by
or on behalf of the Commonwealth’ or under an enactment.

Section 3(3) of the AHRC Act also provides that a reference to, or the doing
of, an act includes a reference to a refusal or failure to do an act.

An act or practice only invokes the human rights complaints jurisdiction of
the Commission where the relevant act or practice is within the discretion of
the Commonwealth, its officers or its
agents.[1]

Mr Heyward was placed in VIDC on 15 March 2009 and was released from VIDC
when he was removed from Australia on 10 January 2011.

Section 189(1) of the Migration Act requires the detention of unlawful
non-citizens. Mr Heyward’s visa was cancelled on 5 March 2009.
Accordingly, when he was released from prison on 15 March 2009 he was an
unlawful non-citizen and, as such, had to be detained. However, the Migration
Act did not require that Mr Heyward be detained in an immigration detention
centre.

Section 197AB of the Migration Act states:

If the Minister thinks that it is in the public interest to do so, the
Minister may make a determination (a residence determination) to
the effect that one or more specified persons to whom this subdivision applies
are to reside at a specified place, instead of being detained at a place covered
by the definition of immigration detention in subsection 5(1).

Further, the definition of ‘immigration detention’ includes
‘being held by, or on behalf of an officer in another place approved by
the Minister in writing’.[2]

Based on the evidence before the Commission it appears that the Minister
never considered Mr Heyward’s request to be placed in community detention.
It appears that DIAC assessed Mr Heyward’s request against its internal
guidelines for referral of matters to the Minister and determined that Mr
Heyward’s request did not meet these guidelines.

Regardless of the internal policy that resulted in Mr Heyward’s request
not being conveyed to the Minister, it was within the power of the Minister to
have made a residence determination in relation to Mr Heyward under

s 197AB
of the Migration Act or to have approved Mr Heyward residing in a place other
than VIDC.

I consider that the failure by the Minister to place Mr Heyward in a less
restrictive form of detention from the time that he entered the custody of the
Commonwealth amounts to an act under the AHRC Act.

4.2 ‘Human
rights’ relevant to this complaint

The expression ‘human rights’ is defined in s 3 of the AHRC Act
and includes the rights and freedoms recognised in the ICCPR, which is set out
in Schedule 2 to the AHRC Act.

The articles of the ICCPR that are relevant to this complaint are:

article 9(1) (prohibition on arbitrary detention)

article 10(1) (humane treatment of people deprived of their liberty)

article 17(1) (prohibition against arbitrary interference with family)

article 23(1) (protection of family).

(a) Article 9(1) of the
ICCPR

Article 9(1) of the ICCPR provides:

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

The requirement that detention not be ‘arbitrary’ is separate and
distinct from the requirement that detention be
lawful.[3]

In order to avoid any characterisation of arbitrariness, detention should not
continue beyond the period for which a State party can provide appropriate
justification.[4]

In A v Australia[5] the
United Nations Human Rights Committee (UNHRC) said:

[T]he Committee recalls that the notion of ‘arbitrariness’ must
not be equated with ‘against the law’ but be interpreted more
broadly to include such elements as inappropriateness and injustice.
Furthermore, remand in custody could be considered arbitrary if it is not
necessary in all the circumstances of the case, for example to prevent flight or
interference with evidence: the element of proportionality becomes relevant in
this context.[6]

The UNHRC further states

... the fact of illegal entry may indicate a need for investigation and there
may be other factors particular to the individual, such as the likelihood of
absconding and lack of cooperation, which may justify detention for a period.
Without such factors, detention may be considered arbitrary, even if entry was
illegal.[7]

Moreover, detention which is otherwise lawful may still be arbitrary where
there are less invasive means of achieving compliance with immigration
policies.

In C v Australia[8] the
UNHRC found that detention was arbitrary because:

[t]he State party has not demonstrated that, in light of the author’s
particular circumstances, there were not less invasive means of achieving the
same ends, that is to say, compliance with the State party’s immigration
policies, by, for example, the imposition of reporting obligations, sureties or
other conditions which would take account of the author’s deteriorating
condition.[9]

(b) Article 10(1) of the
ICCPR

Article 10(1) provides:

All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the person.

Article 10(1) imposes a positive obligation on State parties to take actions
to prevent inhumane treatment of detained
persons.[10] However, a complainant
must demonstrate an additional exacerbating factor beyond the usual incidents of
detention.[11]

In particular, the alleged breach of article 10(1) must impact on one or more
human needs other than liberty or
freedom.[12] These include, failing
to respect the rights and interests of detainees: to light, sanitation and
bedding,[13] to maintain family
connections,[14] to know one’s
own personal information,[15] to
company and personal space[16] and
to be free from hunger.[17]

In Australian Human Rights Commission Report
40,[18] the Commission expressed
the view that arranging for Chinese Officials to interview asylum seekers
without explaining the purpose of the interview, causing fear and distress, was
a violation of article 10 of the ICCPR.

In that report, the Commission expressed the view that ultimately, whether
there has been a breach of article 10(1) will require consideration of the facts
of each case. The question to ask is whether the facts demonstrate a failure by
the State to treat detainees humanely and with respect for their inherent
dignity as a human being.[19]

(c) Articles 17(1) and
23(1) of the ICCPR

Article 17(1) of the ICCPR provides:

No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour
and reputation.

Article 23(1) provides:

The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

Professor Manfred Nowak has noted that:

[T]he significance of Art. 23(1) lies in the protected existence of the
institution “family”, whereas the right to non-interference with
family life is primarily guaranteed by Art. 17. However, this distinction is
difficult to maintain in
practice.[20]

For the reasons set out in Australian Human Rights Commission Report
39[21] the Commission is of the
view that in cases alleging a State’s arbitrary interference with a
person’s family, it is appropriate to assess the alleged breach under
article 17(1). If an act is assessed as breaching the right not to be subjected
to an arbitrary interference with a person’s family, it will usually
follow that that breach is in addition to (or in conjunction with) a breach of
article 23(1).

In its General Comment on article 17(1), the UNHRC confirmed that a lawful
interference with a person’s family may nevertheless be arbitrary, unless
it is in accordance with the provisions, aims and objectives of the ICCPR and is
reasonable in the particular
circumstances.[22]

It follows that the prohibition against arbitrary interferences with family
incorporates notions of
reasonableness.[23] In relation to
the meaning of ‘reasonableness’, the UNHRC stated in Toonen v
Australia:[24]

The [UNHRC] interprets the requirement of reasonableness to imply that any
interference with privacy must be proportional to the end sought and be
necessary in the circumstances of any given
case.[25]

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5 Forming my
opinion

In forming an opinion as to whether any act or practice was inconsistent with
or contrary to any human right I have carefully considered all of the
information provided to me by both of the parties, including the submissions
received from the parties in response to my letter of 22 February 2011 which set
out the acts or practices raised by the complaint that appeared to be
inconsistent with or contrary to human rights.

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6 Arbitrary
detention

Mr Heyward claims that his detention in VIDC from 15 March 2009 until 10
January 2011 was arbitrary within the meaning of article 9(1) of the ICCPR.

The Commonwealth denies that Mr Heyward’s detention was arbitrary. It
submits that it considered less restrictive forms of detention for Mr Heyward
but determined that it was most appropriate that he be detained in VIDC.

Mr Heyward was convicted of a serious criminal offence. Mr Heyward’s
detention in VIDC would not be arbitrary if he posed a danger to the community
and there was no less restrictive way to protect the community from the risk
posed by Mr Heyward than to detain him in VIDC.

I note that the Administrative Appeals Tribunal
(AAT)[26] upheld the decision to
cancel Mr Heyward’s visa, in part, because it was satisfied that he posed
a risk to the Australian community. The AAT noted the view of the sentencing
judge in Mr Heyward’s criminal proceedings that the relevant public, for
the purposes of assessing the risk to the public posed by

Mr Heyward, were
women who may enter a relationship with Mr Heyward.

The AAT found that Mr Heyward’s previous conduct indicated two
contributing factors to his past violent behaviour: alcohol and relationship
problems. The AAT held that his rehabilitation in relation to either
contributing factor could not properly be established on the basis of his time
in prison. The AAT accepted that there was a low risk of recidivism but noted
case law that found that a low risk of recidivism can support visa cancellation
where, if recidivism occurs, it would cause great harm.

While Mr Heyward was convicted of a serious criminal offence, his criminal
conviction is not evidence, of itself, that he posed a danger to the community
such that the Commonwealth could detain him in no less restrictive way than in
VIDC. Further, while the AAT was satisfied that

Mr Heyward posed a risk to
the Australian community, it accepted that there was a low risk of recidivism in
his case and it was not required to determine, and did not determine, whether
that risk could be managed by any measure less restrictive than detaining him in
VIDC.

Mr Heyward served a period of over 6 years imprisonment for his crimes and
was determined to be fit to re-enter the community on parole.

The pre-release report in relation to Mr Heyward recommends that he be
granted parole subject to a number of conditions including:

  1. abstaining from alcohol;
  2. not frequenting or visiting Byron Bay or environs and not traveling within
    40kms of Byron Bay without written approval from his supervising officer;
    and
  3. seeking assistance for his abuse of drugs or alcohol, if directed to do
    so.

Had Mr Heyward been placed in community detention, he would have
been required to comply with these parole conditions. Accordingly, it is unclear
why any danger that he posed to the community would not have been obviated by
the imposition of these conditions.

Further, in addition to the parole conditions imposed by the Department of
Corrective Services, it was open to the Minister to grant a residence
determination in relation to Mr Heyward subject to further conditions.

In its letter of 19 April 2010 DIAC advised Mr Heyward that it had determined
not to refer his request to be placed in community detention to the Minister
because the High Court was shortly expected to make a decision on Mr
Heyward’s appeal. I note that on 18 June 2010 the High Court refused Mr
Heyward’s application for special leave to appeal against the decision of
the Full Federal Court. However, Mr Heyward was not removed from Australia at
this time because he made further applications for a Protection visa and for
Ministerial intervention. Accordingly, Mr Heyward was not released from VIDC
until his removal from Australia on 10 January 2011. Mr Heyward could have been
detained in the community while he pursued his appeal rights. It was not
adequate justification to keep Mr Heyward in VIDC because he was involved in
proceedings which, when exhausted, may have led to his removal from
Australia.

For the reasons outlined above I am satisfied that Mr Heyward’s
detention in VIDC was arbitrary in breach of article 9(1) of the ICCPR.

^Top

7 Cruel, inhuman and
degrading treatment

It is also claimed that Mr Heyward’s detention in VIDC amounted to a
breach of article 10(1) of the ICCPR.

DIAC claims that Mr Heyward was treated with humanity and respect for his
dignity in accordance with article 10(1) of the ICCPR. DIAC claims that

Mr
Heyward’s detention was conducted in accordance with relevant departmental
procedures which have been developed consistently with human rights.

Mr Heyward has not provided evidence to suggest that he has experienced an
additional exacerbating factor beyond the usual incidents of detention.

Based on the evidence currently before me, I am not satisfied that the
Commonwealth has breached Mr Heyward’s rights under article 10 of the
ICCPR.

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8 Interference with and
protection of the family

Mr Heyward claims that his detention in VIDC interfered with his family in
breach of articles 17(1) and 23(1) of the ICCPR. Mr Heyward has an Australian
citizen wife and two Australian citizen children from a previous
relationship.

DIAC claims that Mr Heyward’s detention was lawful and proportionate
and therefore maintains that the interference with family which flows as a
result from Mr Heyward’s detention was reasonable in the circumstances and
was not a breach of article 17 or 23 of the ICCPR.

Mr Heyward has two Australian citizen children, a daughter who is currently
19 and a son who is currently 20.

It appears that Mr Heyward has had very limited contact with his Australian
citizen children over the course of their lives. There was evidence before the
AAT in 2009 that he had recently resumed contact with his son. This contact
occurred by way of emails sent from Mr Heyward’s son in Australia to his
son in the United States, which Mr Heyward’s son in the United States
forwarded to Mr Heyward. Mr Heyward had also recently received one email from
his daughter.

In evidence before the AAT, Mr Heyward advised that his son was angry with
him and wanted to see proof that he had recovered (from his alcoholism). Mr
Heyward’s daughter lived with her mother who did not allow Mr
Heyward’s daughter to have any contact with her father. Based on the
evidence before the Commission, I am not satisfied that Mr Heyward’s
detention in VIDC interfered with his relationship with his son and daughter.

Whilst Mr Heyward was in prison, he rekindled his relationship with his
former wife, with whom he arrived in Australia in 1987, but whom he divorced in
1990. Mr Heyward remarried his former wife in October 2009.

In considering whether any interference with Mr Heyward’s family was
arbitrary, I must consider whether the interference was reasonable and
proportionate to the legitimate end sought by the Commonwealth (protection of
the community from non-citizens who pose a risk to the community) and necessary
in all of the circumstances.

It appears that Mr Heyward’s detention in VIDC was arbitrary as it does
not appear that any risk that he posed to the community required him to be
detained in VIDC rather than a less restrictive form of detention.

As a result of his detention in VIDC Mr Heyward was not able to resume
cohabitation with his wife when he was released from jail as he would have been
able to had he have been detained in the community.

Accordingly, I am satisfied that the interference with Mr Heyward’s
relationship with his wife was arbitrary within the meaning of articles 17(1)
and 23(1) of the ICCPR, but I am not so satisfied in respect of his Australian
citizen children.

^Top

9 Findings and
recommendations

9.1 Power to make
recommendations

Where, after conducting an inquiry, the Commission finds that an act or
practice engaged in by a respondent is inconsistent with or contrary to any
human right, the Commission is required to serve notice on the respondent
setting out its findings and reasons for those
findings.[27] The Commission may
include in the notice any recommendation for preventing a repetition of the act
or a continuation of the
practice.[28]

The Commission may also recommend:

the payment of compensation to, or in respect of, a person who has suffered
loss or damage; and

the taking of other action to remedy or reduce the loss or damage suffered by
a person.[29]

9.2 Consideration of
compensation

There is no judicial guidance dealing with the assessment of recommendations
for financial compensation for breaches of human rights under the AHRC Act.

However, in considering the assessment of a recommendation for compensation
under sК35 of the AHRC Act (relating to discrimination matters under Part
II, Division 4 of the AHRC Act), the Federal Court has indicated that tort
principles for the assessment of damages should be
applied.[30]

I am of the view that this is the appropriate approach to take to the present
matter. For this reason, so far as is possible in the case of a recommendation
for compensation, the object should be to place the injured party in the same
position as if the wrong had not
occurred.[31]

The tort of false imprisonment is a more limited action than an action for
breach of article 9(1) of the ICCPR. This is because an action for false
imprisonment cannot succeed where there is lawful justification for the
detention, whereas a breach of article 9(1) will be made out where it can be
established that the detention was arbitrary, irrespective of legality.

Notwithstanding this important distinction, the damages awarded in false
imprisonment provide an appropriate guide for the award of compensation for a
breach of article 9(1). This is because the damages that are available in false
imprisonment matters provide an indication of how the courts have considered it
appropriate to compensate for loss of liberty.

The principal heads of damage for a tort of this nature are injury to liberty
(the loss of freedom considered primarily from a non-pecuniary standpoint) and
injury to feelings (the indignity, mental suffering, disgrace and humiliation,
with any attendant loss of social
status).[32]

I note that the following awards of damages have been made for injury to
liberty and provide a useful reference point in the present case.

In Taylor v Ruddock,[33] the District Court at first instance considered the quantum of general damages
for the plaintiff’s loss of liberty for two periods of 161 days and 155
days, during which the plaintiff was in ‘immigration detention’
under the Migration Act but held in New South Wales prisons.

Although the award of the District Court was ultimately set aside by the High
Court, it provides useful indication of the calculation of damages for a person
being unlawfully detained for a significant period of time.

The Court found that the plaintiff was unlawfully imprisoned for the whole of
those periods and awarded him $50 000 for the first period of 161 days and $60
000 for the second period of 155 days. For a total period of 316 days wrongful
imprisonment, the Court awarded a total of $110 000.

In awarding Mr Taylor $110 000 the District Court took into account the fact
that Mr Taylor had a long criminal record and that this was not his first
experience of a loss of liberty. He was also considered to be a person of low
repute who would not have felt the disgrace and humiliation experienced by a
person of good character in similar
circumstances.[34]

On appeal, the Court of Appeal of New South Wales considered that the award
was low but in the acceptable
range.[35] The Court noted that
‘as the term of imprisonment extends the effect upon the person falsely
imprisoned does progressively
diminish’.[36]

In Goldie v Commonwealth of Australia & Ors (No
2)[37] Mr Goldie was awarded
damages of $22 000 for false imprisonment being wrongful arrest and detention
under the Migration Act for four days.

In Spautz v
Butterworth[38] Mr Spautz was
awarded $75 000 in damages for his wrongful imprisonment as a result of failing
to pay a fine. Mr Spautz spent 56 days in prison and his damages award reflects
the length of his incarceration. His time in prison included seven days in
solitary confinement.

9.3 Recommendation that
compensation be paid

I have found that on or about 15 March 2009 Mr Heyward should have been
placed in community detention rather than detained in VIDC. The failure to
consider Mr Heyward’s request to be placed in community detention and the
failure to place Mr Heyward in a less restrictive form of detention is
inconsistent with his right not to be arbitrarily detained.

Neither Mr Heyward nor the Commonwealth have made any submissions on an
appropriate sum of compensation.

I consider that the Commonwealth should pay to Mr Heyward an amount of
compensation to reflect the loss of liberty caused by his detention at VIDC and
the consequent interference with his family but I have not assessed the quantum
of that compensation by utilising a strict ‘daily rate’. Had Mr
Heyward been transferred to community detention he would still have experienced
some curtailment of his liberty, and I have taken this into account when
assessing his compensation.

I have also taken into account the fact that Mr Heyward’s detention in
VIDC followed directly on from a period of imprisonment within the New South
Wales Correctional System. In this regard, I note the statement of the Court of
Appeal in Ruddock v
Taylor,[39] that ‘as the
term of imprisonment extends the effect upon the person falsely imprisoned does
progressively diminish.’

Assessing compensation in such circumstances is difficult and requires a
degree of judgment. Taking into account the guidance provided by the decisions
referred to above I consider that payment of compensation in the amount of $200
000 is appropriate.

9.4 Apology

In addition to compensation, I consider that it is appropriate that the
Commonwealth provide a formal written apology to Mr Heyward for the breaches of
his human rights identified in this report. Apologies are important remedies for
breaches of human rights. They, at least to some extent, alleviate the suffering
of those who have been
wronged.[40]

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10 DIAC’s response
to the recommendations

On 29 June 2011 I provided a Notice under s 29(2)(a) of the AHRC Act
outlining my findings and recommendations in relation to the complaint made by
Mr Heyward against the Commonwealth (DIAC).

By letter dated 20 July 2011 DIAC provided the following response to my
findings and recommendations:

The Department’s response on behalf of the Commonwealth of
Australia to the findings and recommendations of the AHRC with regard to Mr
Julian Heyward

1. That the Commonwealth provide a formal written apology to Mr Heyward
for the breaches of his human rights identified in the report.

The Department disagrees with this recommendation.

Mr Heyward did not hold a valid visa to remain lawfully in Australia due to
the cancellation of his visa under section 501 of the Migration Act 1958 (the Act). His immigration detention was therefore lawful in accordance with
section 189 of the Act. The Minister considered the circumstances of Mr
Heyward’s case under section 417 of the Act and decided it was not in the
public interest to intervene.

With regard to Mr Heyward’s placement while in immigration detention,
his case was not referred to the Minister under section 197AB as he withdrew
from the litigation relating to his Protection visa refusal and his removal from
Australia became imminent.

The Department advises the Commission that there will be no action taken with
regard to this recommendation.

2. That the Commonwealth pay financial compensation in the amount of
$200,000 to Mr Heyward.

While we note your findings, in the Department’s view Mr Heyward was
detained lawfully in accordance with the Act and his detention was not
arbitrary.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

I report accordingly to the Attorney-General.

Catherine Branson

President

Australian Human Rights Commission

September 2011

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Appendix 1: Functions of
the Commission

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

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

(1) The functions of the Commission are:

...

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

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

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

Section 3 of the AHRC Act defines an ‘act’ or
‘practice’ as including an act or practice done by or on behalf of
the Commonwealth or an authority of the Commonwealth.

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

In addition, the Commission is obliged to perform all of its functions in
accordance with the principles set out in s 10A of the AHRC Act, namely with
regard for the indivisibility and universality of human rights and the principle
that every person is free and equal in dignity and rights.

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

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

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

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

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[1] Secretary, Department of
Defence v HREOC, Burgess & Ors (Burgess) (1997) 78 FCR 208.

[2] Migration Act 1958 (Cth), s 5.

[3] In Van Alphen v The
Netherlands, the United Nations Human Rights Committee said
‘[A]rbitrariness is not to be equated with ‘against the law’
but must be interpreted more broadly to include elements of inappropriateness,
injustice and lack of predictability. This means that remand in custody pursuant
to lawful arrest must not only be lawful but reasonable in all the
circumstances. Further, remand in custody must be necessary in all the
circumstances, for example, to prevent flight, interference with evidence or the
recurrence of crime.’ Communication No 305/1988, UN Doc
CCPR/C/39/D/305/1988 [5.8].

[4] C v Australia Communication No 900/1999 UN Doc CCPR/C/76/D/900/1999 [8.2], D and E v
Australia Communication No 1050/2002 UN Doc CCPR/C/87/D/1050/2002 [7.2], Omar Sharif Baban v Australia Communication No 1014/2001 UN Doc
CCPR/C/78/D/1014/2001 [7.2], BakhtiyarI v Australia Communication No
1069/2002 UN Doc CCPR/C/79/D/1069/2002 [9.2].

[5] Communication No 560/1993, UN
Doc CCPR/C/59/D/560/1993.

[6] Ibid [9.2].

[7] Ibid [9.4].

[8] Communication No 900/1999 UN
Doc CCPR/C/76/D/900/1999.

[9] See above n 3.

[10] United Nations Human Rights
Committee, General Comment 21, Article 10 (Forty-Fourth session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 (2003) 153.

[11] Jensen v Australia UN Doc CCPR/C/71/D/762/1997.

[12] Taunoa v
Attorney-General [2008] 1 NZLR 429.

[13] See Daley v Jamaica, Communication No 750/1997, UN Doc CCPR/C/63/D/750/1997 (1998), [7.6]; Teesdale v Trinidad and Tobago, Communication No 677/1996, UN Doc
CCPR/C/74/D/677/1996(2002), [9.1].

[14] Miguel Angel Estrella v
Uruguay Communication No 74/1980 UN Doc CCPR/C/18/D/74/1980.

[15] Tatiana Zheludkova v
Ukraine Communication No 726/1996 UN Doc CCPR/C/76/D/726/1996.

[16] McTaggart v Jamaica, Communication No 748/1997, UN Doc, CCPR/C/67/D/748/1997(1999), [8.5].

[17] Michael and Brian Hill v
Spain, Communication No 526/1993, UN Doc. CCPR/C/59/D/526/1993 (1997).

[18] Australian Human Rights
Commission, Report of Complaints by immigration detainees against the
Commonwealth of Australia [2009] AusHRC 40.

[19] Ibid [106].

[20] M Nowak, UN Covenant on
Civil and Political Rights CCPR Commentary (2nd ed, 2005)
518.

[21] Australian Human Rights
Commission, Complaint by Mr Huong Nguyen and Mr Austin Okoye
against the Commonwealth of Australia and GSL (Australia) Pty Ltd [2007]
AusHRC 39, [80]-[88].

[22] United Nations Human Rights
Committee, General Comment 16 (Twenty-third session, 1988), Compilation of
General comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN doc HRI/GEN/1/Rev.6 (2003) 142 (The right to respect of privacy,
family, home and correspondence, and protection of honour and reputation)
[4].

[23] S Joseph, J Schultz & M
Castan, The International Covenant on Civil and Political Rights: Cases,
Materials and Commentary (2004), 482-3.

[24] Communication No 488/1992
UN Doc CCPR/C/50/D/488/1992.

[25] Ibid [8.3]. Whilst this
case concerned a breach of article 17(1) in relation to privacy, these comments
would apply equally to an arbitrary interference with family.

[26] Heyward and Minister for
Immigration and Citizenship [2009] AATA 536 (17 July 2009).

[27] AHRC Act s 29(2)(a).

[28] AHRC Act s 29(2)(b).

[29] AHRC Act s 29(2)(c).

[30] Peacock v The
Commonwealth (2000) 104 FCR 464, 483 (Wilcox J).

[31] See Hall v A & A
Sheiban Pty Limited (1989) 20 FCR 217, 239 (Lockhart J).

[32] Cassell & Co Ltd v
Broome (1972) AC 1027, 1124; Spautz v Butterworth & Anor (1996)
41 NSWLR 1 (Clarke JA); VignolI v Sydney Harbour Casino [1999]
NSWSC 1113 (22 November 1999), [87].

[33] Taylor v Ruddock (unreported, 18 December 2002, NSW District Court (Murrell DCJ)).

[34] Ibid, [140].

[35] [2003] NSWCA 262
[49]-[50].

[36] Ibid, [49].

[37] [2004] FCA 156.

[38] (1996) 41 NSWLR 1 (Clarke
JA).

[39] (2003) 58 NSWLR 269.

[40] D Shelton, Remedies in
International Human Rights Law (2000) 151.