Cases about fair trial rights (8)

Blessington & Elliot v Australia (HRC, 2014)

Remedy's assessment: Unremedied

Bronson Blessington and Matthew Elliot were children who committed violent crimes for which they were sentenced to life in prison without parole. The UN Human Rights Committee found that children should never be sentenced to life in prison without a realistic chance of release and recommended Australia reform its laws without delay to ensure the possibility of release is realistic and regularly considered. The two men ought to be given the benefit of the revised legislation and compensated for breaches of the International Covenant on Civil and Political Rights.

Read more on Blessington & Elliot v Australia.

Dudko v Australia (HRC, 2007)

Remedy's assessment: Unremedied

This Russian-Australian librarian denies she was the woman who, in 1999, assisted a convicted bank robber to escape prison by hijacking a helicopter. She was tried and sentenced to ten years’ gaol. Ms Dudko was denied the right to attend a High Court appeal, at which she was representing herself due to an inability to obtain Legal Aid. The HRC found a breach of her right to a fair trial and equality before the law, which includes the right to be present in person during a criminal appeal. The HRC said Australia should provide Ms Dudko with an unspecified remedy. No remedy has been forthcoming.

Read more on Dudko v Australia.

Fardon v Australia (HRC, 2010)

Remedy's assessment: Remedied

Robert Fardon was held in ‘preventive detention’ beyond the completion of a 14-year prison term for sexual offences. Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 allows prisoners deemed a threat to the community to be gaoled indefinitely. The HRC found Mr Fardon’s continued imprisonment without a new conviction to be arbitrary, retroactive and a violation of his fair-trial rights. It constituted a breach of the prohibition on imposing ‘a heavier penalty … than the one that was applicable at the time when the criminal offence was committed’. Further, the civil proceedings by which Mr Fardon’s continuing imprisonment was reviewed did not meet due process guarantees. An appropriate remedy would include ending his preventive detention, which occurred in 2013.

Read more on Fardon v Australia.

Hicks v Australia (HRC, 2015)

Remedy's assessment: Partially remedied

Australian man David Hicks was captured in Afghanistan in 2001 and detained by the US at Guantánamo Bay. In 2007, he was tried by Military Commission and sentenced to 7 years’ jail. Under a prisoner transfer agreement, Hicks was moved to Australia, where he served 7 months of his sentence, the remainder being suspended. Hicks claims his military trial was unfair, his conviction unlawfully retrospective and his detention arbitrary.

The UN Human Rights Committee found that Australia imprisoning Mr Hicks for 7 months following his return to Australia amounted to arbitrary detention, but that no individual remedy was owed to Mr Hicks because Australia’s “actions were intended to benefit” him. Australia is nonetheless obliged to “prevent similar violations in the future.”

Read more on Hicks v Australia.

Leghaei et al. v Australia (HRC, 2015)

Remedy's assessment: Unremedied

An Iranian couple and their 3 sons migrated to Australia in 1994 on temporary visas and the following year a daughter was born. The family applied for permanent residency, which was refused owing to an undisclosed assessment by Australia’s domestic security agency, ASIO, concerning the father, Dr Leghaei.

Despite 16 years lawful residence in Australia, without ever being charged or warned for any reason, the secret security assessment against Dr Leghaei was upheld on appeal. Dr Leghaei’s wife and children all had permanent residency or citizenship, but his wife and 14yo daughter chose to accompany him when he was obliged to leave Australia in 2010.

The Committee found that Australia did not provide Dr Leghaei with “adequate and objective justification” for his expulsion and denied him “due process of law”. “Disrupting long-settled family life” by expelling the father of a minor child and forcing the family to choose whether to accompany him constitutes arbitrary interference with the family, in violation of articles 17 and 23(1).

Read more on Leghaei et al. v Australia.

Rogerson v Australia (HRC, 2002)

Remedy's assessment: Remedied

Northern Territory barrister Andrew Rogerson was receiving treatment for bipolar mood disorder. A client took out a restraining order against him. Mr Rogerson resisted attempts to serve the restraining order, claiming ‘his deranged behaviour [was] indicative of his poor mental state at the time’. He was found in contempt of court and his practising certificate was cancelled. His appeal to the NT Court of Appeal took two years. The HRC found Mr Rogerson had suffered a violation of his right to be tried without delay, but regarded its finding as ‘sufficient remedy’ and recommended no substantive remedies.

Read more on Rogerson v Australia.

Tillman v Australia (HRC, 2010)

Remedy's assessment: Remedied

At the conclusion of Mr Tillman’s 10-year sentence for sex offences, the NSW Attorney-General used new legislative powers to keep him, presumed a continuing threat to the community, in ‘preventive detention’ a further year under conditions identical to his imprisonment. The HRC found Mr Tillman had suffered arbitrary detention, penal in character, yet ordered by civil proceedings lacking due process, under legislation retroactively applied, without a fresh trial. It suggested he should be released from prison, which had already occurred.

Read more on Tillman v Australia.

Zoltowski v Australia (HRC, 2015)

Remedy's assessment: Unremedied

Mr Zoltowski is a Polish-Australian who moved to Australia with his wife and their 2-year-old son. After nearly 3 years, the family returned to Poland, with the intention of permanent relocation. However, Mrs Zoltowski soon changed her mind, and took the boy to Australia without his father’s consent. The couple divorced, with Polish courts granting sole custody of the child to his father, and the Family Court of Western Australia granting sole custody to his mother.

Mr Zoltowski applied under the Hague Convention on Civil Aspects of International Child Abduction for the return of his son to Poland. Eighteen months later, when his first application was unsuccessful, he applied under the Hague Convention for access and custody. The WA Family Court granted Mr Zoltowski supervised access to his son in Australia, two-and-a-half years after he had first applied.

The UN Human Rights Committee found that Australia’s failure to guarantee personal relations and regular contact between Mr Zoltowski and his son constituted arbitrary interference with family life and violation of the right of families and children to protection. Also, Australia’s failure to deal expeditiously with Mr Zoltowski’s custody and access applications amount to a violation of his rights concerning fair hearings. An effective remedy would include ensuring regular contact between father and son and compensation for the violations of their rights. Australia must also act to prevent similar violations recurring.

Read more on Zoltowski v Australia.