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 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 1984 (Cth) ("the Act"), from 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 exemption is to commence from the date of this Notice and is to continue until 15 October 2002.

1.2 The exemption is granted to DIMIA, its contractors and agents, in response to a request from DIMIA that an interim exemption be granted pending consideration by the Commission of an application dated 2 August 2002 from DIMIA that the exemption granted by the Commission on 7 August 2001 for twelve months in relation to the alternative accommodation trial at Woomera be granted for a further twelve months.

1.3 This exemption is granted in respect of a project (known as the Woomera Residential Housing Project) 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 (“the Centre”) (and, potentially, at other detention centres), are eligible to participate in alternative detention arrangements, namely accommodation in houses in Woomera.

2. FINDINGS ON MATERIAL QUESTIONS OF FACT

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

2.1 On 6 July 2001 the Hon Phillip Ruddock, the Minister for Immigration and Multicultural Affairs, applied for an exemption from the Commission under s.44 of the Act in respect of a twelve month trial of an alternative accommodation project for detainees held at the Centre.

The details of the project were that: only (i) female detainees and (ii) male detainees up to the age of 12 years were eligible to participate in the project; the maximum number of participants was and, the alternative accommodation arrangements comprised a small number of houses located in the community. These arrangements were intended to provide a different form of immigration detention that provided for the needs of women and children asylum seekers. The intention of the trial was that participants in the project 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. It was intended that children be able to live and play in family atmosphere within a small group house and garden. The application advised that the trial could not 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 An exemption under the Act was sought because, as males over the age of 12 were not eligible to participate in the trial, there may be discrimination against males in potential contravention of the Act.

2.3 On 7 August 2001 the Commission granted the exemption for the following reasons:

“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.”

2.4 The term of the exemption was for a period of twelve months.

2.5 On 2 August 2002 DIMIA made application for a further grant of exemption for a period of 12 months.

2.6 DIMIA has sought a short interim exemption pending the Commission's consideration of this application.

3. THESE FINDINGS WERE BASED ON THE FOLLOWING EVIDENCE

3.1 The application made on behalf of DIMIA by Ms Philippa Godwin, First Assistant Secretary, Unauthorised Arrivals and Detention Division, DIMIA contained in her letter to me dated 2 August 2002. The Commission's Notice of Grant of Temporary Exemption dated 7 August 2001.

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

4.1 DIMIA advises that a report prepared 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.

DIMIA advises the Minister is supportive of these recommendations.

4.2 DIMIA is of the view that given the positive evaluation of the trial and its demonstrated benefits to the social and psychological well being of detainees it is important that the project be able to continue.

4.3 The initial exemption expired on 6 August 2002.

4.4 In order to determine whether it will agree to grant an exemption for a further 12 months the Commission wishes to give full consideration to the application for that exemption including consideration of the consultant's evaluation report. (DIMIA advises that the evaluation report will be made available to the Commission by approximately 30 August 2002.) The Commission's consideration may involve its inspection of the alternative facility. So that DIMIA may be exempt from the operations of sections 22, 23 and 26 of the Act pending consideration of its application by the Commission, the Commission has determined that a temporary exemption be granted to DIMIA until 15 October 2002.

Dated this sixteenth day of August 2002

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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.