A v Australia (HRC, 1997)

Violations: ICCPR art 2(3), ICCPR art 9(4), ICCPR art 9(1)

Remedy's assessment: Unremedied

The UN says:

The author is entitled to an effective remedy. In the Committee’s opinion, this should include adequate compensation for the length of the detention to which A was subjected.

HRC (1997)

‘A’ is a Cambodian man born in 1934. He arrived in Australia by boat in 1989 with his Vietnamese wife and their children, the year the Australian Government declared people fleeing post-genocidal violence in Cambodia to be ‘economic refugees’. The family was detained for more than four years in immigration detention. They had no contact with a lawyer for nearly a year and, through transfers between detention centres in different Australian states, lost contact with the legal support they did obtain.

In 1992, they joined with other Cambodian detainees to challenge in the Federal Court of Australia the Migration Amendment Act 1992 which prevented their release from detention. In ‘direct response’, the Government ‘rushed through’ further amendments to the Migration Act 1958, consolidating mandatory detention in law and restricting ‘compensation for unlawful detention to the symbolic sum of one dollar per day’. The group failed in a constitutional challenge to the amendments.

With the eventual success of the author’s wife’s refugee claim, the family was released on temporary visas in January 1994, long before the Human Rights Committee (HRC) formed its Final Views.
In this oft-cited, ‘trail blazing’ decision, the HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention in violation of article 9(1) of the ICCPR, regardless of its lawfulness domestically. Further, the inability of the family to have their detention reviewed by a court violated article 9(4). The Committee said that domestic review of the lawfulness of detention ought to include consideration of Australia’s obligations under the ICCPR. The HRC found an added breach of article 2(3) (the right to an effective remedy), despite this not being claimed explicitly by the author.

Australia rejected the Committee’s interpretation of the Covenant and refused to compensate the A family.

The HRC has deemed this response from the State Party unsatisfactory and classifies ‘follow-up dialogue’ as ‘ongoing’.

For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).

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