Human Rights & Equal Opportunity Commission v Secretary of the Department of Immigration & Multicultural Affairs

[1996] FCA 444

CATCHWORDS

ADMINISTRATIVE LAW - Human Rights and Equal Opportunity Commission - construction of para 20 (6) (b) of the Human Rights and Equal Opportunity Commission Act 1986 - whether provision obliges manager of Immigration Reception and Processing Centre to deliver sealed envelopes sent by Human Rights and Equal Opportunity Commission to captain, crew and passengers of boat who are in detention at Centre - relation between that provision and s 256 of Immigration Act 1958 - whether in Court's discretion, order in nature of mandamus should be made.

STATUTES - Interpretation - maxim generalia specialibus non derogant - two provisions in different statutes one giving a right unconditionally and the other giving a conditional right - different concerns of the two provisions - whether maxim has scope for operation.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 11, 20
Immigration Act 1958 (Cth), s 256

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR v SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

No NG 268 of 1996

Lindgren J
Sydney
7 June 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 268 of 1996
GENERAL DIVISION                 )

BETWEEN:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
  Applicant

HUMAN RIGHTS COMMISSIONER
                   Second Applicant

AND:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:7 June 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the respondent deliver, or cause to be delivered, to the captain, crew and passengers of the boat codenamed "Teal" sealed envelopes sent on or about 19 and 25 March 1996 by the applicants to "The Superintendent" and "The Manager" respectively of the Port Hedland Detention Centre operated by the respondent.

1. THAT the respondent pay the applicants' costs.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 268 of 1996
GENERAL DIVISION                 )

BETWEEN:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
  Applicant

HUMAN RIGHTS COMMISSIONER
                   Second Applicant

AND:

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:7 June 1996

REASONS FOR JUDGMENT

INTRODUCTION:
The applicants seek:

"An Order in the nature of mandamus compelling the respondent to deliver to the captain, crew and detainees [sic - passengers] of the boat codenamed ‘Teal’ (‘the Detainees’) sealed envelopes sent on or about 19 and 25 March 1996 by the applicants to the Superintendent and Manager respectively of the Port Hedland Detention Centre operated by the respondent."

I shall refer to the boat as "the ‘Teal’" and to its captain, crew and passengers as "the Detainees".  In the alternative to the order set out above, the applicants seek a declaration that the respondent is obliged to deliver the two sealed envelopes to the Detainees.

The first applicant ("the Commission") is established by the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act"). The Commission consists of a President and the six Commissioners referred to in sub-s 8 (1) of the HREOC Act. The second applicant is one of the Commissioners. The President and the Human Rights Commissioner are appointed by the Governor General. The President is a part-time member. The Human Rights Commissioner is required to be a legally qualified person and is appointed as a full-time member. By sub-s 8 (6) certain specified functions of the Commission must be performed by the Human Rights Commissioner, and a reference in the HREOC Act to the Commission is to be read, in relation to the performance of any of those functions, as a reference to the Human Rights Commissioner. One of those functions, that referred to in para 11 (1) (f) of the HREOC Act, is of particular relevance to the present case.

For convenience, I shall generally refer only to "the Commission" and this will import a reference to the second respondent as well.

FACTS:
On 12 March 1996 an organisation called the "Refugee Advice and Casework Service" ("RACS") wrote a letter, from its office which is at 161 Fitzroy Street, St Kilda, Melbourne to Mr Robert Haines, Manager, Immigration Reception & Processing Centre ("IRPC"), Port Hedland.  The letter was written over the hand of "Ross McDougall" and requested the Department of Immigration and Ethnic Affairs ("the Department") to furnish to RACS' "employee solicitor, Mr Ross McDougall", who was described as being in Port Hedland at the time, with access to all persons who arrived in Australia in February 1996 on the "Teal" and who were said to be "currently detained at the IRPC, Port Hedland".  The letter continued as follows:

"Access to these persons is required in order that they can be provided, on a pro bono basis, with legal advice and assistance immediately.

You will be aware that the Human Rights & Equal Opportunity Commission has expressed concern at the non-provision of access to lawyers for newly arrived boat-persons in immigration detention.  Should the Department not provide access to the ‘Teal’ detainees in response to this request we advise that it is our intention to formally pursue the matter with the Human Rights & Equal Opportunity Commission.

Should the Department of Immigration & Ethnic Affairs not be amenable to the provision of prompt access to these persons, we request that the Department's reasons for non-provision of access be provided to ourselves, in writing, at your earliest convenience to fax numbers 091 73 3334 and 03 9525 4673."

The Department responded by letter dated 13 March 1996. It advised RACS that no decision had been made for the Government to fund legal assistance for the persons from the "Teal". The letter went on to refer to s 256 of the Migration Act, 1958.  That section is as follows:

"Where a person is in immigration detention under this Act, the person responsible for his or her detention shall, at the request of the person in immigration detention, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention." (emphasis supplied)

It was not in issue that the Detainees are, and have been at all relevant times, "in immigration detention".

The Department's letter described its obligations under s 256 as "quite specific and limited" and as arising "only upon the request of the person in immigration detention." It asserted that since none of the Detainees had requested facilities for the obtaining of legal advice, the Department declined to furnish RACS' lawyers with access to them.

On 18 March 1995 RACS sent by facsimile to the Commission at its office in Sydney a letter, again signed by Ross McDougall, solicitor.  It asserted that approximately six weeks previously, some 48 men, women and children had arrived in Australia by the "Teal" and that they were "currently detained in isolation and incommunicado" at the IRPC, Port Hedland operated by the Department.  The letter asserted that the complaint made in it was lodged with the Commission on behalf of RACS "and on behalf of the ‘Teal’ detainees".  However, as the letter itself made clear, there had been no contact between RACS and anyone representing it and the Detainees and anyone representing them.

The letter complained to the Commission in the following terms:

"RACS has endeavoured to obtain access to these persons in order that they could be provided with legal advice and assistance.  This access request has been refused by the Immigration Department.  We attach relevant correspondence in regard to this request and refusal, for your information [a copy of RACS' letter dated 12 March and of the Department's response dated 13 March were attached].

We are advised by the Immigration department that ‘no decision has yet been made on whether these persons (Teal detainees) are applying for refugee status in Australia and if so, whether the department will furnish them with the facilities to do so’.

It would appear that the ‘Teal’ detainees are not Sino-Vietnamese and therefore and not legislatively precluded from being considered for refugee status in Australia.  It is our concern that the ‘Teal’ detainees are at risk of imminent removal from Australia without having had access to any independent advice or assistance.

We are of the opinion that it is implicit in the manner of the ‘Teal’ persons arrival in Australia that they desire to apply for refugee status and to obtain legal advice in Australia.  We are concerned that holding the ‘Teal’ detainees in isolation and incommunicado may be in breach of, inter-alia, Article 9(4) of the International Covenant on Civil & Political Rights.

Given that the removal of the ‘Teal’ detainees is no doubt imminent, we request that the Commission investigate the circumstances of their detention, their lack of access to legal advice and to the facilities for lodging an application for asylum in Australia, as a matter of urgency.

Please contact Mr Ross McDougall of our office should you wish to discuss any aspect of this matter."

Article 9 (4) of the International Covenant on Civil and Political Rights ("the Covenant") is as follows:

"4.Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

It is clear that the legal advice which Mr McDougall had in mind when writing to the Commission was legal advice relating to the question whether the Detainees had the status of refugees and to the lawfulness of their continued detention.

In his affidavit sworn 29 March 1996, Christopher Dominic Sidoti, the Human Rights Commissioner, gave evidence of his response to RACS' letter of complaint and of certain background in the following terms:

"3.I formed a view that the complaint raised an allegation that the respondent has [sic] acted inconsistently with or contrary to a human right as defined by section 3(1) of the Act, in so far as the detention incommunicado of any person may be in breach of several articles of the International Covenant on Civil and Political Rights (‘ICCPR’), including Articles 9.1, 9.3, 10, 13, 14.3d, and 17.1.

4.The Commission for some time has been inquiring into issues arising under its legislation concerning detainees in the Port Hedland detention centre.  I am currently conducting a wide ranging inquiry into the treatment of detained asylum seekers in all of the detention centres operated by the respondent (including the Port Hedland detention centre, the Villawood detention centre in Sydney and the Maribyrnong detention centre in Melbourne).  One of the issues is access to lawyers.

5.In addition the Commission has, pursuant to section 20(1)(o) [sic - 11(1)(o)] of the Act, intervened in proceedings in the Federal Court of Australia in the matter of Wu Yu Fang v
Minister for Immigration and Ethnic Affairs and Commonwealth of Australia, which relates to the rights of all persons in detention to be told of their right to request access to lawyers, and to be given immediate access to lawyers if they so request.  The detainees in that case were unsuccessful before the Full Federal Court of Australia in Perth in a decision dated 28 February 1996, and have sought special leave to appeal to the High Court of Australia.  If special leave is granted, the Commission intends to seek leave of the High Court to intervene in those proceedings.

6.In the circumstances I accepted the complaint by RACS, pursuant to section 20(1)(b) and (c) of the Act, and I commenced an inquiry into the allegations under section 11(1)(f) of the Act."

The terms of paras 11 (1) (f) and 20 (1) (b) and (c) of the HREOC Act are set out below, but I do not find it necessary to set out the provisions of the Covenant to which Mr Sidoti referred.

The next day, 19 March, the Commission wrote two letters.  One of these was contained in the first sealed envelope referred to in the order sought in the application noted earlier.  That letter was as follows:

"Passengers

C/- Captain,

‘Teal’

Immigration Reception and Processing Centre

PORT HEDLAND  6721

Dear Sirs / Madams

Because I had to write to you today.  I did not have time to have this letter translated.  A copy of this letter in Mandarin will be sent to you in the next few days.  Meanwhile, I hope there is someone among you who can understand this letter, or someone else to assist you.

I have received a complaint against the Department of Immigration and Multicultural Affairs (the Department) from the Refugee Advice and Casework Service (the Service) in which it is alleged that you have been denied legal advice and detained in isolation at the Immigration Reception and Processing Centre, Port Hedland.  It is claimed that the Service has endeavoured to make contact with you so as to advise you about your legal rights in Australia and assist you with any applications to stay in Australia.  When the Service approached the Department about going to see you, the Department stated that ‘none of the persons from the boat have requested the provision of reasonable facilities for obtaining legal advice.’

The complaint is presently being investigated under the terms of the Human Rights and Equal Opportunity Commission Act 1986 (the Act), which gives me the power to investigate acts which may be inconsistent with human rights, including those affirmed in the International Covenant on Civil and Political Rights (ICCPR).  The ICCPR recognises a number of rights which may be relevant, including the right to liberty and security (Article 9.1); the right to challenge the lawfulness of detention (Article 9.3); the right to be represented in challenging a deportation order (Article 13); and the right, if charged with a criminal offence, to legal advice and representation (Article 14.3.d).  A copy of the relevant sections of the ICCPR is enclosed.

To assist me pursue the investigation, it would be appreciated if you could contact Ms Catherine Melville on 1800 021 199 (toll free) at your earliest convenience.  If you require legal advice, you should contact Mr Ross McDougall on [phone] [emphasis supplied].  You will be able to speak to both Mr Melville and Mr McDougall through interpreters.

Yours faithfully,

Chris Sidoti

Human Rights Commissioner"

The telephone number [phone] was that of RACS' Melbourne office.  According to the affidavit evidence of Mr Sidoti, the Commission's letter to the Detainees was contained in a sealed envelope and was sent with a covering letter also
dated 19 March, addressed to "The Superintendent, IRPC, PORT HEDLAND, WA 6721."  The covering letter, omitting formal parts, said this:

"As you may be aware, Section 20 of the Human Rights and Equal Opportunity Commission Act 1986 provides for mail between the Commission and anyone detained in custody to be delivered unopened.  I have attached a copy of the relevant parts of Section 20 for your information.

I would be grateful if this procedure could be complied with in the case of the enclosed letter and any subsequent correspondence between the ‘Teal’ detainees and this Commission in either direction."

The relevant parts of s 20 are set out below.

On 21 March 1996 the Commission wrote to Ms Helen Williams AO, the Secretary of the Department.  The letter enclosed a copy of RACS' letter of complaint dated 18 March 1996 and advised that the Commission was investigating the complaint.  The letter sought the Department's comments on the allegations made in RACS' letter and answers to ten questions set out in the Commission's letter.  The letter further informed the Secretary of the forwarding on 19 March 1996 of the letter in a sealed envelope with the accompanying letter requesting that the sealed envelope be delivered to the Detainees.  The Commission asked to be advised within 21 days whether, in the Secretary's view, the complaint was conciliable.  It also sought the Secretary's assurance that the Detainees would not be expelled from Australia until the Commission's investigation was complete.  It concluded,

"If you have any questions about the procedure please contact Ms Catherine Melville, the officer handling the inquiry for me, on [phone] any day Monday through Thursday."

The telephone number [phone] was that of the Commission's office which was in Sydney where, apparently, Ms Melville worked as an officer of the Commission.

The Commission's letter apparently crossed with a letter from the Department to the Commission of the same date. The Department's letter referred to the Commission's letter dated 19 March 1996 enclosing the sealed envelope. These had apparently been received by the Centre Manager of the IRPC, Port Hedland on only the preceding day, 20 March. The Department advised that the request had been referred on for legal advice as to the Department's responsibilities under s 20 of the HREOC Act and that pending the receipt of the advice, the Centre Manager at Port Hedland had been asked to withhold delivery of the correspondence.

The Commission replied on 22 March drawing attention to its intervening letter to the Department dated 21 March, and again requested the Department's assurance that the Detainees would not be expelled from Australia until the Commission's investigation of the complaint was complete.

On 25 March 1996, the Department forwarded a letter to "The Manager" of the IRPC, Port Hedland enclosing a further sealed envelope for delivery to the Detainees.  The covering letter of request was in identical terms to the earlier one dated 19 March addressed to "The Superintendent" of the Centre.  On this occasion, however, the letter in the sealed envelope was in Mandarin.  In his affidavit, Mr Sidoti said that apart from the translation it was identical to that in English dated 19 March forwarded previously.

On 27 March 1996, the Commission wrote to the Secretary referring to a telephone conversation which had apparently taken place the preceding day between Mr Mark Sullivan, Deputy Secretary of the Department, and Mr Kieren Fitzpatrick, a senior policy adviser of the Commission, to the effect that the Department would not be delivering the sealed letters to the Detainees. The Commission advised that it considered the Department's refusal to deliver the correspondence to be "in flagrant breach" of the provisions of sub-s 20 (6) of the HREOC Act and urged the Department's officers to "perform their obligations under and in accordance with the law." The letter advised that if an undertaking was not forthcoming by 4.00 pm on the same day, 27 March, that the Centre Manager would deliver "the sealed envelope [sic - envelopes?] in his possession" to the captain of the "Teal" without further delay, the Commission would take appropriate action without further notice. Finally, the letter sought written confirmation of Mr Sullivan's oral assurance that the Detainees would not be expelled from Australia until the Commission's investigation of RACS' complaint in relation to the Detainees was complete.

On 27 March 1996, the Secretary of the Department wrote to Mr Sidoti as Human Rights Commissioner, relevantly as follows:

"I refer to your faxed letter of 27 March 1996.  My Deputy Secretary, Mark Sullivan, will be responding on the Department's position.

In responding to you, I have been keen to ensure two things.  First that we keep you informed on our thinking on the matter and secondly that our position is based on the legal opinion of the Attorney-General's Department.

Mr Sullivan has, I understand, stayed in touch with Mr Kieren Fitzpatrick of your office and briefed him on our anticipated position.  This was to ensure [sic] you that the matter was being dealt with at an appropriate level of authority without undue delay.

On the issue of our legal obligations our position will be dependent upon advice from the Attorney-General's Department and I have asked that no formal response be prepared until that advice is with us.  I understand that the matter is also being raised with the Secretary of the Attorney-General's Department, Mr Stephen Skehill.  I am certain that your agency would be keen that advice on this matter is sought from this source.

I would ask that you take no action on this matter until such time as we can provide you with a considered position.  While this will not be before 4pm this afternoon, it will be by Friday, 29 March.  In the meantime I can assure you that there are no plans in place to remove the ‘Teal’ detainees from Australia.

I look forward to your agreement."

On 29 March 1996, the Department wrote to the Commission advising that advice had been received from the Chief General Counsel, Attorney-General's Department, on the Department's responsibilities under sub-s 20 (6) of the HREOC Act. The letter included the following:

"In summary, the view of the Chief General Counsel is that while a broader interpretation is arguable based on the Commission's broad powers of inquiry and investigation, the better interpretation of paragraph 20(6)(b) of the Act is that it is confined to communications from the Commission arising out of or related to a complaint made by a detainee and that it is not a general power for the Commission to communicate with detainees on any matter within its purview.

Based on this advice and your confirmation that no detainee from the ‘Teal’ boat has complained to HREOC, I have instructed that the sealed envelopes should not be delivered to the detainees.  Consequently, I am returning to you the first envelope that was forwarded to the Port Hedland IRPC.  I assure you that this letter has not been opened by any person at the IRPC or within this Department.  On my instructions, the second letter will be returned to you direct from the IRPC.

In your letters of 21 and 22 March 1996 you sought an assurance that the ‘Teal’ detainees would not be expelled until your investigation of the complaint from RACS was complete.  Because of the obligations placed on officers of this Department under section 198 of the Migration Act 1958, I am not prepared to give you the undertaking you seek. However, I confirm that there are no immediate plans to remove these people from Australia. Furthermore, I am prepared to undertake to provide you with 72 hours notice of any proposed removal for the ‘Teal’ detainees while this immediate issue of the delivery of the sealed envelopes remains unresolved.

I will write to you separately on the specific questions you asked about the ‘Teal’ group in your letter of 21 March."

The present application was filed on 2 April 1996 and came on for hearing on 30 May 1996. One issue which I am called upon to decide is whether the construction of para 20 (6) (b) of the HREOC Act referred to in the letter quoted above is correct.
LEGISLATION
As noted earlier, the Commission is established by the HREOC Act. Division 2 (ss 11-19) of Part II of the HREOC Act deals with the functions of the Commission. Sub-section 11 (1) provides that the Commission's functions are those described in the 14 paragraphs of that sub-section. Some of those functions are expressed specifically by reference to "human rights". Paragraph 11 (1) (f) and (p), in particular, are as follows:

"11(1)The functions of the Commission are:

(a)...; (b) ...; (c) ...; (d) ...; (e)...;

(f)to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i)where the Commission considers it appropriate to do so - to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii)where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement - to report to the Minister in relation to the inquiry;

(g)... (h) ... (i) ... (j) ... (k) ... (m) ... (n) ... (o) ...; and

(p)to do anything incidental or conducive to the performance of any of the preceding functions." (emphasis supplied)

Sub-sections 13 (1) and 14 (1) are as follows:

"13(1)The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions."

"14(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."

Division 3 (ss 19A-29) provides specifically in relation to functions relating to human rights.  Several of the provisions in this Division were relied on by the Commission as indicating that it may act on a complaint that an act or practice is inconsistent with or contrary to a human right, made by a person other than the person aggrieved by the act or practice, that is to say, by a third party as distinct from the person whose human rights are allegedly infringed. (The respondent accepted that this is so.) As well, the critical provision of para 20 (6) (b) occurs within this Division.   The relevant provisions in Division 3 are as follows:

"20(2)The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

(a)........ ........ ........ ........ .....;

(b)the Commission is satisfied that the person aggrieved by the act or practice does not desire that the inquiry be held or continued; ...

(4)Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall, ... , forthwith give notice in writing to the complainant of that decision and of the reasons for that decision.

(6)A person who is detained in custody (in this subsection and subsection (7) referred to as the ‘detainee’) is entitled:

(a)upon making a request to the person (in this subsection and subsection (7) referred to as the ‘custodian’) in whose custody the detainee is detained, or to any other person (in this subsection and subsection (7) referred to as a ‘custodial officer’) performing duties in connection with the detention:

(i)to be provided with facilities for preparing a complaint in writing under this Division, for giving in writing to the Commission, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and

(ii)to have sent to the Commission, without undue delay, a sealed envelope delivered by the detainee to the custodian or to a custodial officer and addressed to the Commission; and

(b)to have delivered to the detainee, without undue delay, any sealed envelope, addressed to the detainee and sent by the Commission, that comes into the possession or under the control of the custodian or of a custodial officer. [emphasis supplied]

(7)Where a sealed envelope addressed to the Commission is delivered by the detainee to the custodian or to a custodial officer for sending to the Commission, or a sealed envelope addressed to the detainee and sent by the Commission comes into the possession or under the control of the custodian or of a custodial officer, neither the custodian nor
any custodial officer is entitled to open the envelope or to inspect any document enclosed in the envelope.

(8)For the purposes of subsections (6) and (7) the Commission may make arrangements with the appropriate authority of a State or Territory for the identification and delivery of sealed envelopes sent by the Commission to persons detained in custody in that State or Territory.

29(1)........ ........ ........ ........ ........ .

(2)Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice is inconsistent with or contrary to any human right, the Commission:

(a)-(e) ...;

(f)shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:

(i)where the complaint was made by a person affected by the act or practice - shall serve a copy of that report on the complainant; or

(ii)if the complaint was made by another person - may serve a copy of that report on the complainant."

(3)Where:

(a)a complaint is made to the Commission in relation to an act or practice; and

(b)after an inquiry into the act or practice, the Commission finds that:

(i)the existence of the act or practice has not been established; or

(ii)the act or practice is not inconsistent with or contrary to any human right;

the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and:

(c)in a case to which subparagraph (b) (i) applies - to the person alleged to have done the act or engaged in the practice; or

(d)in a case to which subparagraph (b) (ii) applies - to the person who did the act or engaged in the practice."

Conformably with sub-s 20 (6) quoted above, I shall use the terms "detainee" and "custodian" in a generic sense.

The definitions in s 3 of the HREOC Act of three of the terms used in the above provisions should be noted. An "act" and a "practice" are defined to mean, respectively, an act done or a practice engaged in, inter alia, "by or on behalf of the Commonwealth or an authority of the Commonwealth". The expression "human rights" is defined to mean, relevantly, the rights and freedoms recognised in the Covenant.

OUTLINE OF SUBMISSIONS
The case raised two broad issues: first, an issue of substantive rights turning on the construction of para 20 (6) (b) of the HREOC Act; secondly, the remedial question whether, in the exercise of the Court's discretion, the order in the nature of mandamus or alternatively the declaration as sought in the application should be made.

Outline of Commission's submissions
The Commission's submissions were along the following lines.
On the question of construction, the Commission relies on the grammatical structure of sub-s 20 (6) as showing that a request by the detainee, while part of para (a), is not part of para (b). Since the HREOC Act provides for the Commission to perform its functions described in para 11 (1) (f) upon a written complaint, including a complaint by a third party, or of its own motion, it would inappropriately and irrationally limit its powers of inquiry if para 20 (6) (b) were construed so as not to apply in circumstances where a detainee had not initiated matters by making a request to his or custodian. In cases of incommunicado detention, a construction which deprived para 20 (6) (b) of effect unless the detainee first makes a request to the custodian, would prevent the Commission from becoming satisfied that the detainee did not desire an inquiry to be held or continued (cf para 20 (2) (b)) or determining whether the act or practice being inquired into was established (cf sub-para 29 (3) (b) (i)). If the provision should be thought ambiguous, a construction should be favoured which accords with Australia's obligations under an international treaty (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ)) and Articles 2.2, 2.3, 3 and 17 of the Convention activate that approach to the interpretation of para 20 (6) (b). Since the subject matter of the HREOC Act is the protection and enforcement of human rights, it is appropriate that provisions such as para 20 (6) (b) be construed beneficially (Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 (Mason CJ, Gaudron J); Re Saskatchewan Human Rights Commission v Canadian Odeon Theatres Ltd (1995) 18 DLR (4th) 93 at 108-109; Street v Queensland Bar Association (1989) 168 CLR 461 at 487, 508, 566, 581; Jungarrayi v Olney (1992) 34 FCR 496 at 506; Pearce and Geddes, Statutory Interpretation in Australia (4th ed, Butterworths) para 5.22; s 15AA of the Acts Interpretation Act 1901). In relation to Article 17 of the Covenant in particular, the Commission refers to several decisions dealing with incommunicado detention and interference with a detainee's correspondence and submits that para 20 (6) (b) should be construed in conformity with the Article as interpreted and applied in those decisions. Paragraph 26 of the Explanatory Memorandum which accompanied the Human Rights and Equal Opportunity Commission Bill 1985 supplies some, albeit slight, support for the construction which was suggested by the Commission.  Finally, there are provisions similar to para 20 (6) (b) in other Commonwealth Acts and a narrow construction of the paragraph would imply serious consequences for the investigative bodies with which those provisions are concerned (cf Ombudsman Act 1976, sub-s 7 (3); Complaints (Australian Federal Police) Act 1981, sub-s 22 (4); Inspector-General of Intelligence and Security Act 1986, s 13).

On the question of the Court's discretion it is convenient for me to deal with the Commission's submissions after referring to those of the respondent.

Outline of respondent's submissions
On the question of construction, the respondent makes five submissions. First, the Commission's references to the Covenant, international treaties and decisions dealing with them are beside the point, because para 20 (6) (b) has a purpose and object related to the performance of the Commission's functions as distinct from the recognition and enforcement of human rights. Secondly, ss 21 and 22 give the Commission power to obtain information and documents and sub-s 20 (6) should not be construed as having the same object or purpose but as giving a right to a detainee to activate the rights given by that sub-section upon making a request to his or her custodian. Thirdly, although grammatically the condition of the making of a request occurs within para (a) and not within para (b), para (b) should be construed as being consequential upon para (a). In other words, para (b) predicates an earlier making of a request and subsequent sending of a complaint made by the detainee to the Commission and is addressed to the Commission's response to that complaint. Fourthly, while the Explanatory Memorandum is of limited assistance, para 26 of it lends slight support to the construction suggested by the respondent. Fifthly, s 256 of the Migration Act 1968 is a specific provision dealing with the rights of persons in immigration detention and should be construed as expressing the legislature's intention as to the relevant rights of such persons to the exclusion of para 20 (6) (b) of the HREOC Act which is addressed generally to the position of all persons in detention of all kinds (for the generalia specialibus non derogant principle, the respondent refers to Maybury v Plowman (1913) 16 CLR 468 at 473; Saraswati v R (1991) 172 CLR 1 at 17-18 (Gaudron J) and Pearce and Geddes, Principles of Statutory Interpretation (4th ed, Butterworths) para 4.23). For the proposition that s 256 of the Immigration Act does not oblige the custodian of a person in immigration detention to take the initiative of informing such a person of his or her right to legal advice, the respondent cites Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 353 (FCA/FC) ("Fang's case") at 627 (R D Nicholson J, with whom Jenkinson J agreed).

On the question of the Court's discretion, the respondent relies in the first place on evidence obtained from Mr Sidoti in cross examination.  This was to the effect that there is a longstanding controversial issue concerning the right of access to lawyers to persons detained after illegal entry into Australia on small boats.  Mr Sidoti agreed that there are three principal positions which can theoretically be adopted: first, that lawyers are free to approach such detainees and that in any event the detainees should be advised of their right to have legal advice; secondly, that they should have a right of access to a lawyer but only upon making a request; and thirdly, that they should not have a right of access to a lawyer.  Mr Sidoti agreed that the Department has taken the view that the second position reflects the detainees' legal rights and that as a matter of practice the Department does not permit lawyers to approach detainees unless there has been a request by the detainees.  Mr Sidoti gave evidence that in Fang's case, the Commission intervened to argue that a detainee has a right to be informed that he or she is entitled to request, and have made available, legal advice.  Mr Sidoti denied, however, that the purpose of the reference to legal advice in the last paragraph of the Commission's letters dated 19 and 25 March was to encourage the Detainees to seek legal advice generally about their immigration status.  Rather, he said that the objective was to inform the Detainees of their right to have legal advice about the subject matter of the Commission's investigation.

Against the foregoing background, the respondent's primary submission on the Court's discretion can be understood. The respondent submits that the granting of the relief sought would have the effect of subverting the Department's policy and the construction of s 256 of the Migration Act accepted in Fang's case.  In support of the proposition that the Court should have regard to the purpose of an applicant for, and the effect of the making of, an order in the nature of mandamus, the respondent refers to The Queen v The Directors of The London and St Katharine Docks Company (1874) 44 LJ (NS) 4 and Ex parte Mullen; re Wigley (1970) 91 WN (NSW) 497 (CA) at 503. The respondent submits that at least it is necessary to weigh up the advantages and disadvantages of the granting of the relief sought and that this process dictates that relief should be denied in the present case.

Outline of Commission's submissions in reply on question of discretion
In reply on the question of discretion, the Commission refers to the statement by Quain J in the St Katharine Docks Company case, supra, that he would not wish to lay down a universal rule that before applying for mandamus, a party must state the purpose of the exercise of the right. In any event, the Court should accept Mr Sidoti's evidence that the object and purpose of the Commission's letter was not to circumvent the operation of s 256 or the Department's policy and to encourage the Detainees to seek legal advice in respect of their immigration rights. Moreover, the Court should accept that the Detainees would be unlikely to be familiar with Australian law or even with the identity and objectives of the Commission, so that it is credible that they might need legal advice, if only to assure them that they have nothing to fear from the Commission or its inquiry.

REASONS
I can express my conclusion and reasons on the construction issue briefly.  In my view para 20 (6) (b) operates to give a detainee the right to have delivered to him or her a sealed envelope satisfying the description in that paragraph, without the necessity of a prior request by the detainee to his or her custodian.  This is the plain and grammatical effect of the paragraph.  There is no reason why the paragraph should not have that effect and there are several reasons why it should.

It was not, and could not be, contested that the HREOC Act contemplates that the Commission may be required to "inquire into an act or practice that may be inconsistent with or contrary to a human right" (para 11 (1) (f)) when, inter alia, a written complaint is made to the Commission (para 20 (1) (b)) by a third party, that is to say, a person other than the person affected by the act or practice (cf paras 20 (2) (b); 29 (2) (f)). It is consistent with the HREOC Act's object as stated in its long title "to make provision in relation to human rights", that the Act should, in these circumstances, seek to ensure that the Commission will be able to correspond confidentially with a detainee whose human rights, a third party alleges, are being infringed. It is naturally to be expected that where the Commission receives a complaint by a third party that the human rights of a detainee are being infringed, the Commission will wish to inform the detainee that the complaint has been made; to inquire whether the detainee, as the person aggrieved by the act or practice alleged and complained of, desires an inquiry by the Commission to be held or continued (cf para 20 (2) (b)); and, if appropriate, to seek information from the detainee in relation to the complaint. It is almost too obvious to merit statement that in the case of a detainee whose human rights are, according to a third party, being infringed, the infringer might be the custodian or those whom the custodian represents.

In view of all the foregoing considerations, it is readily understandable that Parliament might see fit to make express provision for a means by which the Commission is enabled, of its own motion, to communicate with a detainee by means of a sealed envelope passing, unopened, through the hands of the custodian.

Neither s 21 nor s 22 is apt to achieve the object to which I have just referred.  They are provisions of the familiar kind empowering a public body or officer conducting an inquiry or investigation to gather information or have documents produced.  Their coercive and general nature belongs to an area of discourse distant from that of para 20 (6) (b).  That paragraph is concerned with confidential communications from the Commission to a detainee directed to enabling the Commission to perform a function in the detainee's interests, while paying due regard to his or her wishes.  Similarly, para 20 (6) (b) evinces a concern to ensure that the Commission's communication is in fact received by the detainee, but s 21, aided by ss 28A and 29 of the Acts Interpretation Act 1901, establishes a regime by which a notice under the section is deemed to have been served for the purpose of establishing a non-compliance and activating the penal provisions of s 23.

If the maxim generalia specialibus non derogant were to have any scope for operation as between sub-s 20 (6) of the HREOC Act and s 256 of the Migration Act 1958, an initial question would arise, the answer to which is not obvious: which is the special provision and which the general? (Section 256 of the Immigration Act 1958 was set out earlier and apart from amendments of no present relevance, the provision is to the same effect as the original s 41 of the Immigration Act 1958, that is, s 41 of Act No 62 of 1958.) Section 256 relates specifically to persons in immigration detention and sub-s 20 (6) relates to persons in detention generally; s 256 provides specifically for the obtaining of legal advice or taking of legal proceedings in relation to immigration detention and sub-s 20 (6) provides for confidentiality of communications which are described in general terms; but s 256 is general in respect of the identify of any person with whom the detainee may wish to communicate and the means of communication, while sub-s 20 (6) addresses specifically communications to and from the Commission by means of sealed envelopes.

In my view, the approach to statutory interpretation encapsulated in the Latin maxim referred to has no scope for operation in the present case. Both s 256 and sub-s 20 (6) are expressed to give rights in the situations to which they are respectively addressed. They do so comfortably with each other, the respective situations addressed being different. Section 256 is not a provision which deals more specifically than does sub-s 20 (6), with the subject of effective means of communication between the Commission and detainees in aid of the performance by the Commission of its functions. Section 256 does not address that subject at all. It is therefore beside the point that, as was recognised in Fang's case, a request by a detainee is plainly a condition of the duty to afford facilities imposed on a custodian by s 256 or that the same observation is plainly true of a detainee's right to be provided with facilities and to have sent to the Commission a sealed envelope, given by para 20 (6) (a).

For the foregoing reasons I am of the view that the Manager of the IRPC, Port Hedland was obliged to deliver the sealed envelope containing the Commission's letter in English dated 19 March 1996 and the sealed envelope containing the Commission's letter in Mandarin dated 25 March 1996.  He failed to do so, albeit on advice as to the effect of para 20 (6) (b), and it became necessary for the present proceeding to be instituted.  It is ironic that because of the Commission's letter dated 19 March was annexed to Mr Sidoti's affidavit filed in the proceeding, the respondent has become aware of the content of that letter, and in particular, of its final paragraph on which the respondent bases its case for a refusal of the relief sought.  If the respondent had given effect to the Detainees' right to have delivered to them the sealed envelopes in accordance with the construction of sub-s 20 (6) which I have held to be the correct one, the respondent would not have been aware of that paragraph. 

I proceed now to deal with the respondent's submission that the relief sought should be denied on the discretionary grounds to which the respondent has referred in her submissions.  In my view, it should not be.

The respondent did not submit, and could not successfully have submitted, that the Commission lacked standing to seek the order and declaration referred to in its application which, after all, related to sealed envelopes which it had sent addressed to the passengers of the "Teal", purportedly in connection with the performance of its functions. The respondent's submission is, in substance, that the letters, at least in so far as they included the invitation in the final paragraph to contact Mr Ross McDougall of RACS if legal advice was required, were not sent for the purpose of an inquiry by the Commission under para 11 (1) (f) of the HREOC Act.

It is true that the Commission might have written its letter without the reference to legal advice.  It is true that it might have written the letter with a reference to legal advice but without the reference to Mr Ross McDougall of RACS.  Mr Sidoti was cross examined in an attempt to show (a) that the mention of legal advice and Mr Ross McDougall was intended to refer to legal advice from Mr McDougall as to whether the Detainees had the status of refugees, and (b) that there was no occasion for the Detainees to have legal advice in connection with the Commission's inquiry, which was supportive of, rather than antagonistic to, their interests.  In relation to (a), the following exchange occurred:

"So you would deny that the purpose of this letter is to encourage them to seek legal advice generally about their immigration status?---Not only deny it, I would find the suggestion offensive." (T 5.24-.26)

In relation to (b), the following exchange occurred:

"Now, so far as you can foresee it is almost inconceivable, is it not, that you would permit any of these people to be placed in jeopardy by anything that would occur of your inquiry?---Absolutely.

And for that reason, I suggest to you, there is no particular advantage to any of them in having legal advice for the purpose of representation before you?---I think there would be a great deal of advantage to them and I cannot see how it would place them in any risk, or any jeopardy whatsoever.  I am conducting an inquiry, I can say to them these are the questions, these are the issues that have been raised with me.  People who are allegedly victims of human rights abuses under Australian law have rights under Australian law and when I'm conducting an inquiry I consider it quite appropriate that if people wish to have legal advice about my inquiry they have it.

But it is not an inquiry in which you would expect them to be placed by the inquiry in any jeopardy of any kind?---No.

Indeed the complainant would be very much active on their behalf as a practical matter?---As a practical matter but of course the complainant had not instructions from them." (T 8.28-9.5)

In relation to the question whether, as a matter of fact, Mr McDougall would be likely to provide legal advice relating to the Detainees' status as refugees if his advice were sought by the Detainees in relation to the Commission's inquiry, the following exchange occurred:

"It would be highly likely, in your view, would it not, that if an inquiry were to be held at which the complainant and some or one of the detainees attended that the opportunity would be availed on by the complainant to give them legal advice under immigration status?---The complainant may well but it's not my function to inquire into the motivation of the complainant.

I accept that.  But what I am suggesting to you is that you are aware that that is highly likely?---I'm aware that it is a possibility but I must say it's not a possibility that I adverted to at any time in this process.

It is a possibility which is highly likely, is it not?---If the detainees and the complainant were in the one place at the one time and the detainees and the complainant have an opportunity to talk, yes, I would say it's highly likely.

Is there any reason that the lawyer who you named in your letter was Mr McDougall rather than any other lawyer?---Mr McDougall had held himself as available to give legal advice to the complainants in relation to this complaint.  The fact also, of course, that he was the complainant is relevant.  I mean, he is from a service that is providing advice of a legal kind to precisely these people.

You did not take any steps, I assume, to see if there was any other lawyer who might be available for that purpose?---I certainly didn't I don't know whether any of the staff did, but I didn't." (emphasis supplied)

I accept Mr Sidoti's evidence.  In particular, I accept that when he wrote the final paragraph of his letter, he did not advert to the possibility or likelihood of the Detainees' being advised by Mr McDougall in relation to the issue whether they satisfied the status of refugees.  Moreover, I think it was reasonably open to him to take the view that the Detainees might stand in need of legal advice in connection with the inquiry by the Commission.  They had arrived recently and apparently do not speak or understand English.  It is reasonable to think that they might not be aware of the existence of the Commission or of its role and might stand in need of legal advice touching those matters.
It is true, as Mr Sidoti frankly acknowledged, that as a matter of fact it is likely that if the Detainees consult Mr McDougall, he will advise them as to their status as refugees.  His doing so in the circumstances of the present case, although unwelcome to the Department in view of its policy, is no reason why the relief sought by the Commission should not be granted. 

It is sufficient to say that accepting Mr Sidoti's evidence as I do, I do not find that his purpose and state of mind in this case reveal any impropriety of purpose on the part of the Commission in seeking the order in the nature of mandamus, which would warrant a refusal of that relief.  Nor is its refusal called for by the possibility, indeed the probability if it be such, that as a result of the order the Detainees will be given legal advice on the question of their refugee status although they have not requested it.

CONCLUSION
An order in the nature of mandamus as sought in para 1 of the application will be made and the respondent will be ordered to pay the applicant's costs.

I certify that this and the preceding 31  pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:7 June 1996

Heard:        30 May 1996

Place:        Sydney

Decision:     7 June 1996

Appearances:   Dr J Griffiths of counsel instructed by Mr N Poynder solicitor of the Human Rights and Equal Opportunity Commission appeared for the applicant.

Mr D M J Bennett QC with Mr R Beech-Jones of counsel instructed by the Australian Government Solicitor appeared for the respondent.