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 12 months.

1.2 The exemption is granted to DIMIA, its contractors and agents, in response to an application made on behalf of DIMIA by Ms Philippa Godwin, then First Assistant Secretary, Unauthorised Arrivals and Detention Division, DIMIA contained in her letter dated 2 August 2002. That application sought a 12 month extension to the 12 month exemption granted to DIMIA by the Commission on 7 August 2001.

1.3 The exemption is granted in respect of a project conducted in Woomera, South Australia, known as the Residential Housing Project (“the Project”), whereby (i) female detainees and (ii) male detainees up to the age of 12 years at the Woomera Immigration Reception and Processing Centre (“the IRPC”) and potentially from other detention centres are eligible to participate in alternative detention arrangements, namely accommodation in houses in Woomera outside the IRPC.

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 5.8 below.

2. BACKGROUND

2.1 On 7 August 2001, in response to an application dated 20 July 2001 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.

2.2 On 16 August 2002, in response to an application dated 2 August 2002 made on behalf of DIMIA by Ms Philippa Godwin, then First Assistant Secretary, Unauthorised Arrivals and Detention Division, the Commission granted a further interim exemption to 15 October 2002.

2.3 On 26 and 27 September 2002, for the purpose of determining whether the Commission should grant a further 12 month exemption, the Human Rights Commissioner, Dr Sev Ozdowski, the Sex Discrimination Commissioner, Ms Pru Goward, and Commission staff inspected the IRPC and the Project and interviewed:

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

2.4 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

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:

3.1 The Project comprises four houses located in the Woomera community, three of which are available for shared accommodation. The Project has a capacity of 25 participants. The Project is available to (i) female detainees and (ii) male detainees up to age 12 (with the Minister having the discretion to permit male detainees above the age of 12 to participate on a case by case basis).

3.2 DIMIA established the Project with the intention of providing a different form of immigration detention to provide for the needs of women and children asylum seekers. In particular, participants in the Project would be enabled to lead a more normal family life in matters such as cooking, having family meals, maintaining the house, doing the laundry and so on. Children would also be able to live and play in a family atmosphere within a small group house and garden.

• DIMIA does not permit male detainees over 12 years of age to participate in the Project as it is of the view that to do so would mean the number of overall participants would be reduced as a house would need to be set aside for male ablutions. DIMIA is also of the view that female detainees might be reluctant to participate in the Project if it meant being in close proximity to non familial male participants. DIMIA has also indicated the participation of adult male participants in the Project may give rise to security issues.

3.4 A report prepared for DIMIA by a consultant gave a positive evaluation of the alternative accommodation trial and made a number of recommendations which include:

• the continuation of the Project,
• an increase in capacity of the Project, and
• expansion of the eligibility criteria to include detainees at review stage.

The Minister is supportive of the recommendations and has permitted detainees at the review stage to participate in the Project.

(The following was ascertained from the Commission's visit to the IRPC and the Project :)

3.5 Female participants in the Project are permitted to visit their male partners in the IRPC on a daily basis and may remain overnight in the IRPC. Male detainees have, on at least one occasion, been permitted to visit their partners at the Project but not remain overnight.

3.6 Female participants in the Project feel safer at the Project than at the IRPC. Detainees at the IRPC are overwhelmingly single male detainees, and, even though families are generally detained in a family compound, female detainees can be the subject of unwanted attention. This attention can lead to a feeling of fear or vulnerability on the part of a female detainee. Further, the witnessing of incidents of self harming by detainees at the IRPC may also give rise to fear on the part of female detainees.

3.7 Parents feel their children are safer at the Project. It was felt that residing in the Project enabled children to live in an environment which is more peaceful and quieter than the IRPC. The issue was raised of the detrimental effect on children of residing in the environment of the IRPC where there were incidents of self harm and frequent episodes of yelling and screaming. It was reported that the change in location has significantly improved the behaviour of the children.

3.8 The participants find the Project 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 from the Project are, however, subject to the supervision of ACM Officers.

3.9 Many female participants at the Project 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 Project, distress resulting from separation was an issue as was the impact for children on their relationship with their fathers. Certainly there was information before the Commission indicating that families suffered, sometimes severely, from the separation.

3.10 Female participants at the Project would be concerned about residing in the same house at the Project as non-familial male participants.

3.11 Husbands of female participants preferred their wives and/or children to reside at the Project as the environment of the IRPC was considered not to be a proper place for women and children. Accordingly, husbands reported the benefits of the Project for their family, their children and themselves.

3.12 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.

3.13 Children at the Project are able to lead a more normal and healthier life at the Project than they would at the IRPC. However, for children at the Project there is a serious concern about separation from their fathers. That is, children missing their fathers, concern about the impact of separation on the well-being of the fathers, reservations about visiting the IRPC in view of past experiences, and the very limited opportunity fathers have had to visit the Project.

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 Ms Godwin on behalf of DIMIA dated 2 August 2002, the Commission's own knowledge, including information obtained from its visit to the IRPC and the Project on 26 and 27 September 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, the Commission is of the view that in light of the objects of the Act the continuation of the project is worthwhile and that the exemption to ensure the Project may operate without challenge under the Act is appropriate.

5.2 There is a possibility the Project 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 its proposal to increase the capacity of the Project and to expand the eligibility criteria to include detainees at review stage and for the initial steps it has taken to enable husbands/fathers to gain access to their wives/children at the Project. 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 further pursue the broadening of access by husbands/fathers to their wives/children at the Project, including giving serious consideration to the provision of dedicated family accommodation at the Project. The Commission also strongly urges DIMIA to give serious consideration to including family accommodation when implementing new residential housing projects in conjunction with other detention centres, including the new Baxter detention centre in Port Augusta.

5.7 The Commission's general approach in respect of temporary exemption applications is that the Act in the context of its objects should comprehensively apply. It also appropriate to take into account relevant human rights instruments including the Convention on the Rights of the Child. In this case whilst the exemption is not fully consistent with the objects of the Act, the public policy considerations of the benefits that flow to the residents of the Project, their children and thus their husbands in the IRPC (as reflected in their views set out above) from the continuation of the Project, the Commission, on balance, regards it as appropriate to grant the exemption sought.

5.8 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 14th day of October 2002

Signed by the President, Professor Alice Tay AM, 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 October 2005.