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Privacy - National Inquiry into Children in Immigration Detention

National Inquiry into Children in Immigration Detention

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GENERAL DIRECTIONS BY THE HUMAN RIGHTS COMMISSIONER:

PRESERVATION OF ANONYMITY AND LIMITATIONS ON PUBLICATION

REASONS FOR DIRECTIONS

I refer to my directions

dated 19 April 2002 and outlined below. My reasons

for making these directions are as follows.

1. The Legislation

The Human Rights

and Equal Opportunity Commission Act 1986 provides:

14 Form of examinations

or inquiries to be at discretion of Commission etc.

(1) For the purpose

of the performance of its functions, the Commission may make an examination

or hold an inquiry in such manner as it thinks fit and, in informing

itself in the course of an examination or inquiry, is not bound by

the rules of evidence.

(2) Where the

Commission considers that the preservation of the anonymity of a person:

(a) who has

made a complaint to the Commission; or

(b) who:

(i) has furnished

or proposes to furnish information;

(ii)

has produced or proposes to produce a document;

(iii) has given or proposes to give evidence; or

(iv) has made or proposes to make a submission;

to the Commission

or to a person acting on behalf of the Commission;

is necessary

to protect the security of employment, the privacy or any human

right of the person, the Commission may give directions prohibiting

the disclosure of the identity of the person.

(3) The Commission

may direct that:

(a) any evidence

given before the Commission or any information given to the Commission;

or

(b) the contents

of any document produced to the Commission;

shall not be

published, or shall not be published except in such manner, and to

such persons, as the Commission specifies.

(4) Where the

Commission has given a direction under subsection (3) in relation

to the publication of any evidence or information or of the contents

of a document, the direction does not prevent a person from communicating

to another person a matter contained in the evidence, information

or document if the first-mentioned person has knowledge of the matter

otherwise than by reason of the evidence or information having been

given or the document having been produced to the Commission.

In the exercise

of the power under s.14(3), the Commission is required to consider a

number of factors including, relevantly, the need to prevent "the

unreasonable disclosure of the personal affairs of any person";

s.14(5). The Commission is also required to "try to achieve an

appropriate balance between the need to have regard to those matters

and the desirability of ensuring that interested persons are sufficiently

informed of the results of the Commission's examination or inquiry";

s.14(6).

It is an offence

to contravene a direction given by the Commission under subsection 14(2)

or 14(3) that is applicable to a person; s.14(7). This is a strict liability

offence; s.14(7A).

The Commission's

power under s.14 has been delegated to me for the purposes of this Inquiry.

2. Direction 1

I consider that

the preservation of the anonymity of all asylum seekers giving evidence,

producing information or documents, and making submissions to this

Inquiry (or proposing to do such things) is necessary to protect their

privacy, security of employment and human rights.

I am also conscious

of the general need to protect the identity of asylum seekers to minimise

any risk that the disclosure of personal information (including the

fact of their application for asylum) may give rise to concerns of persecution

in a country from which they have fled. Furthermore, I am of the view

that the direction is necessary to ensure that asylum seekers are not

discouraged from coming forward to assist the Inquiry.

Note that this

direction is intended to prohibit the publication of photographs or

images of people such as would disclose their identity.

It should also

be noted that this direction preserving anonymity is concerned with

protecting the identity of asylum seekers assisting the Commission with

this Inquiry. This does not prevent the publication of the substance

of submissions or evidence to the Inquiry in the form in which those

submissions or that evidence is published by the Commission (see directions

3 and 4 below).

3. Direction 2

I consider that

the preservation of the anonymity of all other persons giving evidence,

producing information or documents, and making submissions to this Inquiry (or proposing to do such things) may be necessary to protect their

privacy, security of employment and human rights.

Accordingly, I

am directing that anonymity is granted to all such persons making

a request for anonymity. I am of the view that this direction is

necessary to ensure that persons with relevant information are not discouraged

from coming forward to assist the Inquiry.

This direction

is also intended to prohibit the publication of photographs or images

of people such as would disclose their identity.

It should be noted

that this direction preserving anonymity is concerned with protecting

the identity of persons assisting the Commission with this Inquiry.

This does not prevent the publication of the substance of submissions

or evidence to the Inquiry in the form in which those submissions or

that evidence is published by the Commission (see directions 3 and 4

below).

4. Direction 3

In addition to

the orders above, I consider it necessary to preserve the anonymity

of people who may be identified in evidence, documents or submissions

to the Inquiry.

The broad nature

of the inquiry makes it inappropriate for individuals to be identified

as a result of evidence, the provision of documents or information,

or the making of submissions. The Terms of Reference of the Inquiry

require it to focus on "the adequacy and appropriateness of Australia's

treatment of child asylum seekers and other children who are, or have

been, held in immigration detention". The Inquiry will not be able

to conduct a detailed examination of, or give individual remedies in

respect of, individual complaints, and people with individual complaints

are advised to make a separate complaint to the Commission under our

ordinary complaints-handling procedure.

It is not intended,

however, that this Direction prevent the identification of public figures,

or persons voluntarily participating in the inquiry who are not asylum

seekers and have not otherwise sought anonymity. The terms of Direction

4 will allow the Commission to make it clear when such figures are able

to be identified.

5. Direction 4

In order to assist

compliance with Directions 1, 2 and 3 the Commission intends to publish

material in a form which avoids identification of individuals named

in the Inquiry, with the anticipated exception of public figures and

those people who have voluntarily participated in the inquiry and are

not asylum seekers or otherwise subject to an order preserving their

anonymity.

In making Directions

3 and 4 I have had regard to the need to prevent "unreasonable

disclosure" personal information, and those Directions are not

intended to prevent all disclosure of personal information. I have also

tried to achieve an appropriate balance between the need to prevent

any "unreasonable disclosure" of personal information, and

desirability of the Inquiry being a public, open process.

I note that this

order does not "prevent a person from communicating to another

person a matter contained in the evidence, information or document if

the first-mentioned person has knowledge of the matter otherwise than

by reason of the evidence or information having been given or the document

having been produced to the Commission"; s.14(4).

6. Application of Directions

These Directions

are all subject to any further direction, and any person wishing to

make submissions as to these Directions and their application to them,

or wishing to clarify the application of these Directions to them, should

raise these matters with the Commission.


GENERAL

DIRECTIONS BY THE HUMAN RIGHTS COMMISSIONER:

PRESERVATION OF ANONYMITY AND LIMITATIONS ON PUBLICATION

1. I consider that

the preservation of the anonymity of all persons who are identified

or identifiable as asylum seekers (as defined below) and:

(a) who have

made a complaint to the Commission in connection with this Inquiry;

or

(b) who:

(i) have furnished

or propose to furnish information;

(ii) have produced or propose to produce a document;

(iii) have given or propose to give evidence; or

(iv) have made or propose to make a submission;

to the Commission or to a person acting on behalf of the Commission

in connection with this Inquiry;

is necessary

to protect the privacy, security of employment and human rights of

those persons.

Pursuant to s.14(2)

of the Human Rights and Equal Opportunity Commission Act 1986,

I direct that the disclosure of the identity of such persons, or any

information that could identify them, is prohibited, subject to any

further direction.

For the purposes

of this direction "asylum seekers" refers to all persons who

claim or have claimed to be a refugee (as defined by the Convention

relating to the Status of Refugees 1951 and amended by the Protocol

relating to the Status of Refugees 1967) whether or not they are

or were in fact a refugee and whether or not they have applied for a

visa to enter and/or remain in Australia on the basis that they are

a refugee.

2. I consider that

the preservation of the anonymity of other persons

(a) who have

made a complaint to the Commission in connection with this Inquiry;

or

(b) who:

(i) have furnished

or propose to furnish information;

(ii) have produced or propose to produce a document;

(iii) have given or propose to give evidence; or

(iv) have made or propose to make a submission;

to the Commission or to a person acting on behalf of the Commission

in connection with this Inquiry;

may be required

to protect the privacy, security of employment and human rights of

those persons.

Accordingly, pursuant

to s.14(2) of the Human Rights and Equal Opportunity Commission Act 1986, I direct that the disclosure of the identity of all such persons

who request anonymity, or any information that could identify them,

is prohibited, subject to any further direction.

3. In order to

prevent an unreasonable disclosure of the personal affairs of persons

who may be identified in the course of the Inquiry, pursuant to s.14(3)

of the Human Rights and Equal Opportunity Commission Act 1986, I direct

that evidence or information given before the Commission, and the contents

of any document produced to the Commission in connection with this Inquiry

shall not be published in a form that identifies any individual or could

identify any individual, subject to Direction 4 below and any further

direction.

4. It will not

be a breach of Direction 3 above to publish evidence or information

if the Commission has already published that evidence or information.

Dr Sev Ozdowski

OAM

Human Rights Commissioner

19 April 2002

. Last Updated 9 July

2002.