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shall not be
published, or shall not be published except in such manner, and to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