DIMIA

HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION SEX DISCRIMINATION ACT 1984 (Cth) Section 44(2)

NOTICE OF GRANT OF TEMPORARY
EXEMPTION

By this instrument the Human Rights and Equal Opportunity
Commission (“the Commission”) grants to the Department of
Immigration and Multicultural and Indigenous Affairs (“DIMIA”)
its contractors and agents, a temporary exemption (“the exemption”)
pursuant to section 44(2) of the Sex Discrimination Act (Cth) 1984
(“the Act”), in relation to the operation of sections 22,
23 and 26 of the Act. The temporary exemption applies only on the terms
set out in this instrument.

1. TERMS OF THE EXEMPTION

1.1 The temporary exemption is to commence
from the date of this Notice and is to continue for a period of 2 years.

1.2 The exemption is granted to DIMIA,
its contractors and agents, in response to an application made on behalf
of DIMIA by Mr S.D. Davis, First Assistant Secretary, Unauthorised Arrivals
and Detention Division, DIMIA contained in his letter dated 22 August
2003.

1.3 The exemption is granted in respect
of a project conducted by DIMIA in Woomera, South Australia, known as
the Residential Housing Project (Woomera RHP), whereby (i) female detainees
and (ii) male detainees up to the age of 18 years at any immigration detention
facility are eligible to participate in alternative detention arrangements,
namely accommodation in houses in Woomera.

1.4 The exemption is granted on the
condition that the operation of the Project be subject to the continuing
monitoring of the Commission as set out in 5.9 below.

2. BACKGROUND

2.1 On 7 August 2001, in response to
an application from the Minister for Immigration and Multicultural and
Indigenous Affairs (“the Minister”), the Commission granted
a 12 month exemption in respect of the Woomera RHP to DIMIA, its contractors
and agents from the operation of sections 22, 23 and 26 of the Act. On
16 August 2002 the Commission granted a further interim exemption to 15
October 2002. On 14 October 2002 the Commission granted a further 12 month
exemption. The applicant now seeks a further 5 year exemption but indicates
the continuation of the Woomera RHP will be subject to further assessment
in light of demand and other considerations.

2.2 Prior to the further grant of the
exemption on 14 October 2002 the Human Rights Commissioner, Dr Sev Ozdowski,
the Sex Discrimination Commissioner, Ms Pru Goward, and Commission staff
inspected the Woomera Immigration Reception and Processing Centre (IRPC)
and the Woomera RHP and interviewed:

• families
  in the Woomera RHP;
• partners
  and children in the Woomera IRPC of families in the Woomera RHP;
• those in
  the IRPC who decided not to take the opportunity to move into the Woomera
  RHP; and
• DIMIA and
  Australasian Correctional Management (“ACM”) officers.

2.3
An evaluation report dated 8 March 2002 of the alternative accommodation
trial was prepared for DIMIA by a consultant and a version was provided
to the Commission.

3. FINDINGS ON MATERIAL
QUESTIONS OF FACT

3.1 Based on the evidence referred to
in paragraph 4.1 the Commission’s findings on material questions
of fact relating to the application are as follows:

3.2 The capacity of the Woomera RHP
has been increased since the time of the grant of the exemption on 14
October 2002 from 25 to 40 participants.

3.3 The Woomera RHP is available to
(i) female detainees and (ii) male detainees up to age 18 (previously
up to age 13). Participation is voluntary. As the Woomera IRPC holds no
detainees, close male relatives in immigration detention would be offered
transfer to Baxter IDF, if not already detained there.

3.4 DIMIA established the Woomera RHP
as women and children, as minority groups within the detention centre
environment, may be left feeling vulnerable in a largely single male adult
population. The Department was asked by the Minister to consider alternate
detention arrangements which would provide a more normal existence for
children with their mother or guardian whilst still abiding by the terms
of the Migration Act 1958. The initial trial enabled women and children
to live in family style accommodation two kilometres from the Woomera
IRPC with the participants approximating a more normal family life in
matters such as cooking, having family meals, maintaining the house, doing
the laundry and general maintenance of the house. Children were able to
live and play in a family atmosphere within a small group house and garden.

3.5 DIMIA does not permit male detainees
aged 18 years or over to participate in the Project as it was developed
as an alternative place of detention for women and children in detention.
Men were not considered to fall within the scope of the Project. DIMIA
states that for cultural reasons having males involved might significantly
influence the decision of females who might otherwise wish to participate.

3.6 A report prepared for DIMIA by
a consultant gave a positive evaluation of the Woomera alternative accommodation
trial. Recommendations in the Report that (i) the Project be continued,
(ii) the capacity of the Project be increased, and (iii) the eligibility
criteria be expanded to include detainees at review stage, have been implemented.

3.7 There is a visits program for wives/children
at the Woomera RHP and husbands/ fathers at the Baxter Immigration Detention
Facility (IDF). The visits program is described by DIMIA as follows:

“Wednesday
AM – Baxter IDF to Woomera RHP for husbands/fathers – return
to Baxter IDF late afternoon.

Thursday AM – (optional) Woomera RHP to Baxter IDF for wives/children,
for religious services – return to Woomera RHP in the afternoon.


Friday PM – Woomera RHP to Baxter IDF for wives/children –
return Sunday AM (see next item)

Sunday AM – wives/children and husbands/fathers travel to Woomera
RHP – day at Woomera RHP includes a BBQ lunch – husbands/fathers
return to Baxter IDF late afternoon.

If any women and/or children at the RHP wish to travel
to Baxter IDF at a non scheduled time, they can make a request and the
request will be facilitated as long as a vehicle is going to Baxter IDF
(which is usually every weekday). Women and children can also stay for
a longer period of time at Baxter IDF if they wish to do so. The Detention
Service Provider, ACM, is flexible with the arrangements. If there was
an emergency situation where someone from the Woomera RHP needed to see
their husbands/father and there was not a scheduled trip to Baxter IDF
or a vehicle travelling to Baxter IDF for other business, then action
would be taken to facilitate a visit. If there was a special occasion
or situation then a visit for male detainees to the RHP, outside the visits
schedule, could be facilitated.”

3.8 As stated above, the Human Rights
Commissioner and Sex Discrimination Commissioner visited and talked to
participants in the Woomera RHP and those at the Woomera IRPC in September
2002. The views expressed on those occasions are outlined below. The Human
Rights Commissioner has subsequently visited the Baxter IDF. As a result
of those visits the Commission is satisfied that, for the purpose of consideration
of the current application, the observations outlined below would continue
to be applicable.

• The participants
  in the Woomera RHP found it provides a more normal existence “closer
  to the life we had before” [comment of a resident at the Project].
  They are able to cook, shop, have excursions and enjoy the amenity of
  the communal lawn. Outings are, however, subject to the supervision
  of ACM Officers.
• Many female
  participants in Woomera RHP were distressed by the separation from their
  husbands and were anxious about their husband’s limited involvement
  with their children, as well as the effect of that separation and limited
  involvement on their husbands’ well being. Whilst acknowledging
  the better environment of the Woomera RHP, distress resulting from separation
  was an issue as was the impact for children on their relationship with
  their fathers. There was information before the Commission indicating
  that families suffered, sometimes severely, from the separation.
• Some female
  participants in Woomera RHP indicated they would be concerned about
  residing in the same house there as non-familial male participants.
• Husbands
  of participants preferred their wives and/or children to reside at the
  Woomera RHP as the environment of the Woomera IRPC was considered not
  to be a proper place for women and children. Accordingly, husbands reported
  the benefits of the Woomera RHP for their family, their children and
  themselves.
• For fathers
  residing at the IRPC there was nevertheless the serious issue of separation,
  its detrimental impact on their well-being and their inability to properly
  fulfil their role as a parent and husband.
• Children
  at the Woomera RHP are able to lead a more normal and healthier life
  than they would have at the Woomera IRPC. However, for children there
  is a serious concern about separation from their fathers, that is, children
  missing their fathers and concern about the impact of separation on
  the well-being of the fathers.

4. THESE FINDINGS WERE BASED
ON THE FOLLOWING EVIDENCE

4.1 The application for exemption from
the Minister dated 20 July 2001, the application from DIMIA dated 2 August
2002, the application from DIMIA dated 22 August 2003, the Commission’s
own knowledge, including information obtained from its visit to the Woomera
IRPC and the Woomera RHP on 26 and 27 September 2002, and to Baxter IDF
on 12 and 13 December 2002, and the consultant’s evaluation report
prepared for DIMIA dated 8 March 2002.

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

5.1 Having considered the advice and
recommendation of the Sex Discrimination Commissioner and the Human Rights
Commissioner, and having regard to the matters referred to below the Commission
agrees to grant a further temporary exemption for a period of 2 years
in respect of the Woomera RHP.

5.2 There is a possibility the Woomera
RHP may be in contravention of sections 22, 23 or 26 the Act:

Section 22 which is contained in Division 2 of Part
II of the Act renders unlawful discrimination by a person, who provides
goods and services or makes facilities available, against another person
on the ground of that other person's sex, marital status, pregnancy or
potential pregnancy in the provision of those goods, services or facilities.

Section 23 contained in Division 2 of Part II of the
Act, renders unlawful discrimination by a person against another person
on the ground of the other person’s sex, marital status, pregnancy
or potential pregnancy in connection with the provision of accommodation.

Section 26 contained in Division 2 of Part II of the
Act, renders unlawful discrimination by a person against another person
on the ground of the other person’s sex, marital status, pregnancy
or potential pregnancy in connection with the performance of a function
or exercise of a power under a Commonwealth law or for the purposes of
a Commonwealth program.

5.3 Section 44(2) enables the Commission
to grant, on application from a person, a further temporary exemption
from the operation of a provision of Division 1 or 2 of Part II of the
Act.

5.4 The Commission has previously stated
that Australia’s mandatory detention regime is in breach of its
human rights obligations under the International Covenant on Civil
and Political Rights and the Convention on the Rights of the
Child. In particular, Article 37 of the Convention on the Rights
of the Child provides that a child shall be detained only as measure
of last resort and for the shortest appropriate period of time. The Commission
also notes that the Preamble to the Convention on the Rights of Child
recognises the family as the fundamental group of society and the need
for a child to grow up in a family environment.

5.5 The Human Rights Commissioner has
encouraged the development of alternatives to the current detention regime
that are consistent with Australia’s human rights obligations.

5.6 The Commission commends DIMIA on
the extension of the eligibility criteria to include males up to 18 years
of age and to detainees at review stage, and for the steps it has taken
to introduce a visits program enabling husbands/fathers to gain better
access to their wives/children at the Woomera RHP.

5.7 In view of the distress caused
to families as a result of separation of family members and the impact
separation has on the development and well being of the family unit the
Commission strongly urges DIMIA to:

(i) give
close consideration to any psychological assessment of a family under
consideration for participation in the Woomera RHP (including husbands/fathers)
in relation to whether separation may have a negative impact on the
family and should that be indicated give serious consideration to alternative
detention arrangements such as community placement for the entire family;

(ii) closely monitor the psychological well being of the families involved
in the Woomera RHP (including husbands/fathers in the Baxter IDF) to
ensure the separation is not having a negative impact on the family
and should that be evident give serious consideration to alternative
detention arrangements such as community placement for the entire family;
and

(iii) give serious consideration to the provision of dedicated family
accommodation at the Woomera RHP so that the entire family may be together.

5.8 In accordance with the Commission’s
Guidelines on applications for temporary exemption under the Sex Discrimination
Act, the Commission’s general approach in respect of temporary
exemption applications is that the Act in the context of its objects should
comprehensively apply. Temporary exemptions under the SDA have rarely
been granted. The application seeks a further 5 year exemption, which
is the maximum period for which an exemption may be granted by HREOC.
The applicant states that by seeking a 5 year exemption it is not stating
an intention to continue the operation of Woomera RHP for 5 years but
that the continuation of the Woomera RHP will be re-assessed in light
of demand for RHP places and other relevant considerations. The Commission
generally considers that whilst the granting of a temporary exemption
permits an applicant to act inconsistently with the Act on a short term
basis, the applicant should use that opportunity to bring itself within
the terms of the Act. Accordingly, it may be argued that this is not an
appropriate case for the granting of a further exemption as the activity
to be protected by the exemption is not fully consistent with the objects
of the Act and is potentially ongoing. Further, it may be argued that
should DIMIA wish to take action such as this that is potentially ongoing
and inconsistent with the objects of the Act, it should be a matter for
decision by the Parliament rather than the Commission.

However, it is appropriate to take into account the
significant advance made by DIMIA in meeting the terms of the Act, namely
permitting males up to the age of 18 to participate in the Woomera RHP.
It is also appropriate to take into account relevant human rights instruments
including the Convention on the Rights of the Child. In this
case, the exemption is not fully consistent with the objects of the Act.
However, having regard to the public policy considerations of the benefits
that flow to the adult female residents of the Project, their children
and thus their husbands/fathers in the IDF from the continuation of the
Project, the Commission, on balance, regards it as appropriate, on this
occasion, to grant the temporary exemption.

The Commission is of the view that the term of the exemption
should be for 2 years. Whilst any further application from DIMIA will
be considered on its merits, the Commission is of the view that a term
of 2 years for this exemption should provide an adequate opportunity for
DIMIA to bring the operation of the Woomera RHP into line with the objects
of the SDA or take further significant steps in that direction. Alternatively,
it will provide an opportunity for DIMIA to initiate legislative action
to limit the operation of the Act if that is considered appropriate.

5.9 This exemption is granted subject
to the condition that DIMIA permit the Commission to monitor the operation
of the Project including by:

• notifying
  the Commission of any proposed changes to the operation of the Project
  that might restrict the operation of the Project, and providing the
  Commission with an opportunity to comment on those changes.
• allowing
  the Commission, subject only to operational requirements, continued
  access to the Project as required by the Commission, including the opportunity
  to interview DIMIA and ACM staff, residents of the Project and other
  detainees.

Dated this 19th day of September 2003

Signed by the President, the Hon. John von Doussa, on behalf of the Commission.

Please note

Section 45 of the Act provides that applications may be made to the Administrative
Appeals Tribunal for a review of a decision made by the Commission under
section 44 of the Sex Discrimination Act.

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HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION SEX DISCRIMINATION ACT 1984 (Cth) Section 44(1)

NOTICE OF GRANT OF TEMPORARY
EXEMPTION

By this instrument
the Human Rights and Equal Opportunity Commission (“the Commission”)
grants to the Department of Immigration and Multicultural and Indigenous
Affairs (“DIMIA”) its contractors and agents, a temporary
exemption (“the exemption”) pursuant to section 44(1) of the
Sex Discrimination Act (Cth) 1984 (“the Act”), in
relation to the operation of sections 22, 23 and 26 of the Act. The temporary
exemption applies only on the terms set out in this instrument.

1. TERMS OF THE EXEMPTION

1.1 The
temporary exemption is to commence from the date of this Notice and is
to continue for a period of 2 years.

1.2
The exemption is granted to DIMIA, its contractors and agents, in response
to an application made on behalf of DIMIA by Mr S.D. Davis, First Assistant
Secretary, Unauthorised Arrivals and Detention Division, DIMIA contained
in his letter dated 22 August 2003. The application sought a 5 year exemption.

1.3
The exemption is granted in respect of projects to be conducted by DIMIA
at Port Augusta, South Australia, and Port Hedland, Western Australia,
known as Residential Housing Projects (RHPs), whereby (i) female detainees
and (ii) male detainees up to the age of 18 years at any immigration detention
facility are eligible to participate in the alternative detention arrangements
provided for by those RHPs.

1.4 The
exemption is granted on the condition that the operation of those RHPs
be subject to the continuing monitoring of the Commission as set out in
5.9 below.

2. BACKGROUND

2.1 On
7 August 2001, in response to an application from the Minister for Immigration
and Multicultural and Indigenous Affairs (“the Minister”),
the Commission granted a 12 month exemption to DIMIA, its contractors
and agents from the operation of sections 22, 23 and 26 of the Act in
respect of a trial of an RHP at Woomera, South Australia. On 16 August
2002 the Commission granted a further interim exemption to 15 October
2002 in respect of this RHP. On 14 October 2002 the Commission granted
a further 12 month exemption.

2.2 Prior
to the further grant of the exemption for the Woomera RHP on 14 October
2002 the Human Rights Commissioner, Dr Sev Ozdowski, the Sex Discrimination
Commissioner, Ms Pru Goward, and Commission staff inspected the Woomera
Immigration Reception and Processing Centre (IRPC) and the Woomera RHP
and interviewed:

• families in the
  Woomera RHP;
• partners and
  children in the IRPC of families in the Woomera RHP;
• those in the
  IRPC who decided not to take the opportunity to move into the Woomera
  RHP; and
• DIMIA and Australasian
  Correctional Management (“ACM”) officers.

2.3 An
evaluation report dated 8 March 2002 of the alternative accommodation
trial was prepared for DIMIA by a consultant and a version was provided
to the Commission. The review concluded the trial of the Woomera RHP was
a success.

2.4
DIMIA wishes to continue the RHP at Woomera and establish RHPs at Port
Augusta and Port Hedland.

3. FINDINGS ON MATERIAL QUESTIONS
OF FACT

3.1 Based
on the evidence referred to in paragraph 4.1 the Commission’s findings
on material questions of fact relating to the application follow.

3.2
The Port Augusta RHP will have a capacity of 40 participants. It will
operate in suburban Port Augusta, 2 kilometres from the town centre and
10 kilometres from Baxter IDF. The RHP will consist of eight 3 bedroom
houses plus an administration building.

3.3 The
Port Hedland RHP will have a capacity of 10 – 15 participants. It
will be located in an existing DIMIA facility which consists of 5 en-suite
motel rooms, with communal kitchen, dining and living areas. The building
has a pool and garden and an existing 2.4 metre chain wire fence. It is
750 metres from Port Hedland IRPC and 1.5 kilometres from the town.

3.4
These RHPs are available to (i) female detainees and (ii) male detainees
up to age 18. Participation in the RHPs is voluntary.

3.5 Close
male relatives of the participants in these RHPs who are in immigration
detention would be offered transfer to Baxter Immigration Detention Facility
(IDF), or Port Hedland IRPC, as appropriate, if not already detained there.

3.6 There
will be a visits program for these RHPs similar to the Woomera RHP visits
program that operates for wives/children at the Woomera RHP and husbands/
fathers at the Baxter IDF. In view of the proximity of the Port Augusta
RHP to the Baxter IDF and the Port Hedland RHP to the Port Hedland IRPC
a more flexible visits program may be developed for these RHPs.

The Woomera visits
program is described by DIMIA as follows:

“Wednesday
AM – Baxter IDF to Woomera RHP for husbands/fathers – return
to Baxter IDF late afternoon.

Thursday AM –
(optional) Woomera RHP to Baxter IDF for wives/children, for religious
services – return to Woomera RHP in the afternoon.

Friday PM –
Woomera RHP to Baxter IDF for wives/children – return Sunday AM
(see next item)

Sunday AM –
wives/children and husbands/fathers travel to Woomera RHP – day
at Woomera RHP includes a BBQ lunch – husbands/fathers return
to Baxter IDF late afternoon.

If any women and/or
children at the [Woomera] RHP wish to travel to Baxter IDF at a non scheduled
time, they can make a request and the request will be facilitated as long
as a vehicle is going to Baxter IDF (which is usually every weekday).
Women and children can also stay for a longer period of time at Baxter
IDF if they wish to do so. The Detention Service Provider, ACM, is flexible
with the arrangements. If there was an emergency situation where someone
from the Woomera RHP needed to see their husbands/father and there was
not a scheduled trip to Baxter IDF or a vehicle travelling to Baxter IDF
for other business, then action would be taken to facilitate a visit.
If there was a special occasion or situation then a visit for male detainees
to the RHP, outside the visits schedule, could be facilitated.”

3.7
Frequent supervised visits of participants at the Port Augusta RHP and
Port Hedland RHP to town for shopping and recreation will be permitted.

3.8
As women and children, as minority groups within the detention centre
environment, may be left feeling vulnerable in a largely single male adult
population the Department was asked by the Minister to consider alternate
detention arrangements which would provide a more normal existence for
children with their mother or guardian whilst still abiding by the terms
of the Migration Act 1958. The initial trial of the Woomera RHP
enabled women and children to live in family style accommodation two kilometres
from the Woomera IRPC with the participants approximating a more normal
family life in matters such as cooking, having family meals, maintaining
the house, doing the laundry and general maintenance of the house. Children
were able to live and play in a family atmosphere within a small group
house and garden.

3.9
A report prepared for DIMIA by a consultant gave a positive evaluation
of the Woomera alternative accommodation trial. Recommendations in the
Report that (i) the Project be continued, (ii) the capacity of the Project
be increased, and (iii) the eligibility criteria be expanded to include
detainees at review stage, have been implemented.

3.10
DIMIA does not permit male detainees aged 18 years or over to participate
in the Project as it was developed as an alternative place of detention
for women and children in detention. Men were not considered to fall within
the scope of the project. DIMIA states that for cultural reasons having
males involved might significantly influence the decision of females who
might otherwise wish to participate.

3.11
As stated above, the Human Rights Commissioner and Sex Discrimination
Commissioner visited and talked to participants in the Woomera RHP and
those at the Woomera IRPC in September 2002. The views expressed on those
occasions are outlined below. The Human Rights Commissioner has subsequently
visited the Baxter IDF. As a result of those visits the Commission is
satisfied that, for the purpose of consideration of the current application,
the observations outlined below would continue to have relevance.

• The participants
  in the Woomera RHP found it provides a more normal existence “closer
  to the life we had before” [comment of a resident at the Project].
  They are able to cook, shop, have excursions and enjoy the amenity of
  the communal lawn. Outings are, however, subject to the supervision
  of ACM Officers.
• Many female participants
  in Woomera RHP were distressed by the separation from their husbands
  and were anxious about their husband’s limited involvement with
  their children, as well as the effect of that separation and limited
  involvement on their husbands’ well being. Whilst acknowledging
  the better environment of the Woomera RHP, distress resulting from separation
  was an issue as was the impact for children on their relationship with
  their fathers. There was information before the Commission indicating
  that families suffered, sometimes severely, from the separation.
• Some female participants
  in Woomera RHP indicated they would be concerned about residing in the
  same house there as non-familial male participants.
• Husbands of participants
  preferred their wives and/or children to reside at the Woomera RHP as
  the environment of the Woomera IRPC was considered not to be a proper
  place for women and children. Accordingly, husbands reported the benefits
  of the Woomera RHP for their family, their children and themselves.
• For fathers residing
  at the IRPC there was nevertheless the serious issue of separation,
  its detrimental impact on their well-being and their inability to properly
  fulfil their role as a parent and husband.
• Children at the
  Woomera RHP are able to lead a more normal and healthier life than they
  would have at the Woomera IRPC. However, for children there is a serious
  concern about separation from their fathers, that is, children missing
  their fathers and concern about the impact of separation on the well-being
  of the fathers.

4. THESE FINDINGS WERE BASED
ON THE FOLLOWING EVIDENCE

4.1
The application for exemption from the Minister dated 20 July 2001, the
application from DIMIA dated 2 August 2002, the application from DIMIA
dated 22 August 2003, the Commission’s own knowledge, including
information obtained from its visit to the Woomera IRPC and the Woomera
RHP on 26 and 27 September 2002, and to Baxter IDF on 12 and 13 December
2002, and the consultant’s evaluation report prepared for DIMIA
dated 8 March 2002.

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

5.1
Having considered the advice and recommendation of the Sex Discrimination
Commissioner and the Human Rights Commissioner, and having regard to the
matters referred to below the Commission agrees to grant a temporary exemption
for a period of 2 years in respect of the Port Augusta and Port Hedland
RHPs.

5.2
There is a possibility these RHPs may be in contravention of sections
22, 23 or 26 the Act:

Section 22 which
is contained in Division 2 of Part II of the Act renders unlawful discrimination
by a person, who provides goods and services or makes facilities available,
against another person on the ground of that other person's sex, marital
status, pregnancy or potential pregnancy in the provision of those goods,
services or facilities.

Section 23 contained in Division 2 of Part II of the Act, renders unlawful
discrimination by a person against another person on the ground of the
other person’s sex, marital status, pregnancy or potential pregnancy
in connection with the provision of accommodation.

Section 26 contained in Division 2 of Part II of the Act, renders unlawful
discrimination by a person against another person on the ground of the
other person’s sex, marital status, pregnancy or potential pregnancy
in connection with the performance of a function or exercise of a power
under a Commonwealth law or for the purposes of a Commonwealth program.

5.3
Section 44(1) enables the Commission to grant, on application from a person,
a temporary exemption from the operation of a provision of Division 1
or 2 of Part II of the Act.

5.4 The
Commission has previously stated that Australia’s mandatory detention
regime is in breach of its human rights obligations under the International
Covenant on Civil and Political Rights and the Convention on
the Rights of the Child. In particular, Article 37 of the Convention
on the Rights of the Child provides that a child shall be detained
only as measure of last resort and for the shortest appropriate period
of time. The Commission also notes that the Preamble to the Convention
on the Rights of Child recognises the family as the fundamental group
of society and the need for a child to grow up in a family environment.

5.5
The Human Rights Commissioner has encouraged the development of alternatives
to the current detention regime that are consistent with Australia’s
human rights obligations.

5.6
The Commission commends DIMIA on the extension of the eligibility criteria
to now include males up to 18 years of age and detainees at review stage,
and for the steps it has taken to introduce a visits program enabling
husbands/fathers to gain better access to their wives/children at the
Woomera RHP (and which will now apply in respect of the Port Augusta and
Port Hedland RHP).

5.7 In
view of the distress caused to families as a result of separation of family
members and the impact separation has on the development and well being
of the family unit the Commission strongly urges DIMIA to:

(i) give close
consideration to any psychological assessment of a family under consideration
for participation in the RHPs (including husbands/fathers) in relation
to whether separation may have a negative impact on the family, and
should that be indicated give serious consideration to alternative detention
arrangements such as community placement for the entire family;

(ii) closely monitor the psychological well being of the families involved
in the RHPs (including husbands/fathers at the IDF or IRPC) to ensure
the separation is not having a negative impact on the family and should
that be evident give serious consideration to alternative detention
arrangements such as community placement for the entire family; and

(iii) give serious consideration to the provision of dedicated family
accommodation at the RHPs so that the entire family may stay together.

5.8
In accordance with the Commission’s Guidelines on applications
for temporary exemption under the Sex Discrimination Act, the Commission’s
general approach in respect of temporary exemption applications is that
the Act in the context of its objects should comprehensively apply. Temporary
exemptions under the Act have rarely been granted. The application seeks
a 5 year exemption in respect of both RHPs, which is the maximum period
for which an exemption may be granted by the Commission. The Commission
generally considers that whilst the granting of a temporary exemption
permits an applicant to act in contravention of the Act on a short term
basis, the applicant should use that opportunity to bring itself within
the terms of the Act. Accordingly, it may be argued that this is not an
appropriate case for the granting of an exemption as the activity to be
protected by the exemption is not fully consistent with the objects of
the Act and is potentially ongoing. Further, it may be argued that should
DIMIA wish to take action such as this that is potentially ongoing and
inconsistent with the objects of the Act, it should be a matter for decision
by the Parliament rather than the Commission.

However, it is appropriate
to take into account the significant advance made by DIMIA in meeting
the terms of the Act, namely now permitting males up to the age of 18
to participate in these projects. It is also appropriate to take into
account relevant human rights instruments including the Convention
on the Rights of the Child. In this case the exemption is not fully
consistent with the objects of the Act. However, having regard to the
public policy considerations of the benefits that flow to the adult female
residents of the RHPs, their children and thus their husbands/fathers
in the IDF or IRPC from the operation of the project the Commission decides,
on balance, that it is appropriate on this occasion, to grant the temporary
exemption.

The Commission is
of the view that the term of the exemption should be for 2 years. Whilst
any further application from DIMIA will be considered on its merits, the
Commission is of the view that a term of 2 years for this exemption should
provide an adequate opportunity for DIMIA to bring the operation of the
RHPs into line with the objects of the Act or take further significant
steps in that direction. Alternatively it will provide an opportunity
for DIMIA to initiate legislative action to limit the operation of the
Act if that is considered appropriate.

5.9 This
exemption is granted subject to the condition that DIMIA permit the Commission
to monitor the operation of the RHPs including by:

• notifying the
  Commission of any proposed changes to the operation of the RHPs that
  might restrict their operation, and providing the Commission with an
  opportunity to comment on those changes.
  
• allowing the
  Commission, subject only to operational requirements, access to the
  RHPs as required by the Commission, including the opportunity to interview
  DIMIA and ACM staff, residents of the RHPs and other detainees.

Dated this
19th day of September 2003.

Signed by the President, the Hon. John von Doussa, on behalf of the Commission.

Please note

Section 45 of the Act provides that applications may be made to the Administrative
Appeals Tribunal for a review of a decision made by the Commission under
section 44 of the Sex Discrimination Act

Last
updated 20 November 2003.