Legal framework Functions of the Commission Section 11(1) of the AHRC Act identifies the functions of the Commission. Relevantly, s 11(1)(f) gives the Commission the following functions: to inquire into any act or practice that may be inconsistent with or contrary to any human right, and: 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 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. Section 20(1)(b) of the AHRC Act requires the Commission to perform the functions referred to in s 11(1)(f) when a complaint in writing is made to the Commission alleging that an act is inconsistent with or contrary to any human right. Section 8(6) of the AHRC Act requires that the functions of the Commission under s 11(1)(f) be performed by the President. Scope of ‘act’ and ‘practice’ The terms ‘act’ and ‘practice’ are defined in s 3(1) of the AHRC Act to include an act done or a practice engaged in by or on behalf of the Commonwealth or an authority of the Commonwealth or under an enactment. Section 3(3) provides that the reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act. The functions of the Commission identified in s 11(1)(f) of the AHRC Act are only engaged where the act complained of is not one required by law to be taken; that is, where the relevant act or practice is within the discretion of the Commonwealth, its officers or agents.
Findings and recommendations As noted above, the department first considered whether to refer Mr AI’s case to the Minister for consideration of a community detention placement in June 2014. By this time, Mr AI had already been in immigration detention for more than two years. The department decided not to refer Mr AI’s case to the Minister. The department’s internal assessment as to whether Mr AI’s case should be referred to the Minister properly took into account his criminal history and prior visa refusals on character grounds. The mitigation of risks to the Australian community was a legitimate aim on behalf of the Commonwealth. However, there was material before the department which could have led to the conclusion that the risk to the Australian community either was low or could have been mitigated by conditions placed on community detention. This material included the department’s own view that Mr AI’s previous convictions were ‘relatively minor’, the fact that he has not been convicted of any offence for more than 10 years, and its view from the time when Mr AI was living in the community that Mr AI was compliant with the department and therefore unlikely to be a flight risk. These factors did not form part of the department’s internal assessment. Further, the department’s internal assessment failed to properly take into account the fact that from at least October 2012 Mr AI had outstanding legal applications which would take a significant amount of time to resolve. There was no prospect of his imminent removal from Australia. As a result, there was a significant risk that his continued detention while the assessment of his claims for protection were finally determined would be protracted and could become arbitrary. In the circumstances, the failure to refer Mr AI’s case to the Minister in order for the Minister to assess whether to exercise his public interest powers in light of all of the facts was not proportionate to the aim of either facilitating his removal from Australia or mitigating risks to the Australian community. The department should have made a referral in or around October 2012 for the Minister to consider exercising his public interest powers. That referral should have contained a risk assessment of Mr AI balancing relevant factors in his case, along with a consideration of whether any risks could be mitigated in a community detention placement. There was no reasonable justification for the delay of more than a year and a half in making a decision on the question of referral.