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 grants to the Department of Immigration and Multicultural Affairs (“DIMA”) 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 (“the 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 DIMA, its contractors and agents, in response to an application for exemption dated 4 April and 20 July 2001 from the Hon Phillip Ruddock, the Minister for Immigration and Multicultural Affairs.

1.3 The exemption is granted in respect of a trial project to be conducted in Woomera, South Australia, whereby (i) female detainees and (ii) male detainees up to the age of 12 years at the Woomera Immigration Reception and Processing Centre will be eligible to participate in alternative detention arrangements, namely accommodation in houses outside the Centre.

2. FINDINGS ON MATERIAL FACT

The Human Rights and Equal Opportunity Commission's findings on material questions of fact relating to the application were as follows:

2.1 DIMA proposes to introduce a trial alternative accommodation project for detainees held at the Woomera Immigration Reception and Processing Centre. Only (i) female detainees and (ii) male detainees up to the age of 12 years will be eligible to participate in the project. The maximum number of participants will be 25. The alternative accommodation arrangements will comprise four houses located in the community, three of which will be available for shared accommodation. These arrangements are intended to provide a different form of immigration detention that will provide for the needs of women and children asylum seekers. It is envisaged that participants in the project will be able to lead a more normal family life through such matters as attending school, cooking, having family meals, maintaining the house, doing the laundry and so on. Children will be able to live and play in family atmosphere within a small group house and garden. DIMA advises that the trial cannot be extended to males as 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 and as females might be reluctant to participate if it meant being in close proximity to non familial males.

2.2 As males over the age of 12 may not participate in the trial, there may be discrimination against males in potential contravention of the Act.

3.THESE FINDINGS WERE BASED ON THE FOLLOWING EVIDENCE

3.1 The application for an exemption dated 20 July 2001 from the Hon Phillip Ruddock, the Minister for Immigration and Multicultural Affairs and the Commission's own knowledge of the Woomera Immigration Reception and Processing Centre resulting from its visits to the Centre.

4.THE COMMISSION'S REASONS FOR GRANTING AN EXEMPTION ARE AS FOLLOWS:

4.1 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 trial project is a worthwhile project and that the exemption to ensure the scheme may operate without challenge under the Act is appropriate.

4.2 There is a possibility the proposed alternative detention arrangements may be in contravention of the Sex Discrimination Act.

4.3 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.

4.4 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.

4.5 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.

4.6 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.

4.7 The Commission's stated policy is that Australia's mandatory detention regime as it currently exits 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.

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

4.9 The Commission's general approach in respect of temporary exemption applications is that the Act in the context of its objects should comprehensively apply. In this case having regard to human rights issues and the objects of the Act the Commission, on balance, regards it as appropriate to grant the exemption sought.

Dated this seventh day of August 2001

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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 24 October 2005.