Recommendations Power to make recommendations Where, after conducting an inquiry, the Commission finds that an act or practice engaged in by a respondent is inconsistent with or contrary to any human right, the Commission is required to serve notice on the respondent setting out its findings and reasons for those findings.31 The Commission may include in the notice any recommendation for preventing a repetition of the act or a continuation of the practice.32 The Commission may also recommend: the payment of compensation to, or in respect of, a person who has suffered loss or damage; and the taking of other action to remedy or reduce the loss or damage suffered by a person.33 Consideration of compensation There is no judicial guidance dealing with the assessment of recommendations for financial compensation for breaches of human rights under the AHRC Act. However, in making a recommendation for compensation under s 35 of the AHRC Act (relating to discrimination matters under Part II, Division 4 of the AHRC Act), the Federal Court has indicated that tort principles for the assessment of damages should be applied.34 I am of the view that this is the appropriate approach to take to the present matter. For this reason, so far as is possible in the case of a recommendation for compensation, the object should be to place the injured party in the same position as if the wrong had not occurred.35 The tort of false imprisonment is a more limited action than an action for breach of article 9(1) of the ICCPR. This is because an action for false imprisonment cannot succeed where there is lawful justification for the detention, whereas a breach of article 9(1) will be made out where it can be established that the detention was arbitrary, irrespective of legality.
Recommendations Power to make recommendations Where, after conducting an inquiry, the Commission finds that an act or practice engaged in by a respondent is inconsistent with or contrary to any human right, the Commission is required to serve notice on the respondent setting out its findings and reasons for those findings.31 The Commission may include in the notice any recommendation for preventing a repetition of the act or a continuation of the practice.32 The Commission may also recommend: the payment of compensation to, or in respect of, a person who has suffered loss or damage; and the taking of other action to remedy or reduce the loss or damage suffered by a person.33 Consideration of compensation There is no judicial guidance dealing with the assessment of recommendations for financial compensation for breaches of human rights under the AHRC Act. However, in making a recommendation for compensation under s 35 of the AHRC Act (relating to discrimination matters under Part II, Division 4 of the AHRC Act), the Federal Court has indicated that tort principles for the assessment of damages should be applied.34 I am of the view that this is the appropriate approach to take to the present matter. For this reason, so far as is possible in the case of a recommendation for compensation, the object should be to place the injured party in the same position as if the wrong had not occurred.35 The tort of false imprisonment is a more limited action than an action for breach of article 9(1) of the ICCPR. This is because an action for false imprisonment cannot succeed where there is lawful justification for the detention, whereas a breach of article 9(1) will be made out where it can be established that the detention was arbitrary, irrespective of legality.
2013%20AusHRC%2069%20Ogawa%20v%20Cth%20%28DIAC%29_WORD.docx