A Cambodian man known as ‘A’ arrived in Australia by boat in 1989 with his wife and children. The family was detained for more than four years until the success of Mrs A’s refugee claim. The HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention. The family’s right to have their detention reviewed by a court, and their right to an effective remedy, were also violated. Australia rejected the Committee’s interpretation of the ICCPR and refused to compensate the A family.
Read more on A v Australia.
An Iraqi-Kurd asylum seeker and his infant son were detained and his refugee claim was rejected. The HRC requested a stay of deportation; Australia complied. The HRC found the Babans’ detention was arbitrary and not subject to judicial review, and recommended compensation. They have not been compensated.
Read more on Baban v Australia.
A family of Hazara asylum seekers claiming to be from Afghanistan was detained on arrival in Australia. Australia determined that the Bakhtiyaris’ claim to be from Afghanistan was not credible; doubt about their origins undermined their refugee claim. The HRC requested a stay of deportation. In its Final Views, the HRC decided that the long-term detention of the family was arbitrary, beyond judicial review, and had not been ‘guided by the best interests of the children’. Further potential violations were found. It proposed that Australia should pay appropriate compensation for these violations. Australia deported the family to Pakistan in 2004, without compensation.
Read more on Bakhtiyari & Bakhtiyari v Australia.
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.
A 16-year-old boy, convicted of burglary and assault, was transferred to an adult prison after participating in a riot at a juvenile detention centre. He was subjected to solitary confinement, forced nakedness, forced anti-psychotic medication and 24-hour lighting. In view of Mr Brough’s additional vulnerability as an Indigenous Australian with a mild intellectual disability, the HRC found that he had been treated inhumanely and without the protection due to children, and should be compensated. He has not been compensated.
Read more on Brough v Australia.
‘C’ was detained on arrival in Australia in 1992 and accepted as a refugee in 1995. He acquired serious mental illness in detention, and his threatening behaviour while in a delusional state led to his being sentenced to 3½ years’ gaol. With psychiatric care, he made ‘dramatic’ improvement and was deemed no longer dangerous. However, as a non-citizen with a custodial sentence exceeding 12 months, he was slated for deportation. The HRC accepted that detention had been the cause of mental illness in this man with no psychiatric history, that his mental illness was the ‘direct cause’ of his offending and that, with appropriate medical care, he was unlikely to re-offend. As well as being arbitrary and lacking judicial review, his detention became ‘cruel, inhuman or degrading treatment’ once it was evident that it was causing his deteriorating mental health. To deport Mr C would also breach article 7. The Committee recommended compensation. Mr C ultimately obtained a visa to remain in Australia, in accord with Committee Views, but he has not been compensated.
Read more on C v Australia.
Mexican brothers-in-law living in Australia were subject to arrest warrants in Mexico. They were remanded in custody while contesting extradition. The HRC found that locking the 2 men in a wire cage with floor area only big enough for a chair constituted a breach of prisoners’ right to humane and dignified treatment. The men were extradited before the HRC reached its Final Views. Australia has said it would ensure ‘a similar situation does not arise again’, but does not accept that Cabal and Pasini are entitled to compensation.
Read more on Cabal & Pasini v Australia.
Dr Campbell and her partner of 10 years, Ms A, had a daughter together and are both recognised as the child’s legal parents. Without access to marriage equality in Australia, the couple travelled to Canada to marry. They separated and Campbell assumed sole care of their daughter. They obtained a formal separation and division of property, but no formal proceedings concerning the custody and care of their daughter. Ms A stopped contributing to their mortgage and to child support.
Australia forbids child marriage, polygamous marriage and same-sex marriage, although these kinds of marriages are lawful in certain other countries. Australian law provides divorce proceedings for the former two types of marriage, but forbids same-sex couples who have married abroad from obtaining a divorce in Australia. Campbell alleged that this distinction constitutes discrimination on the basis of sexual orientation, with difficulties and harms arising both from discrimination and denial of divorce.
The Committee found Australia in breach of article 26 of the ICCPR (equality before the law).
Read more on Campbell v Australia.
This 26-year-old made a speech in Townsville’s pedestrian mall without a permit, in breach of a local government by-law. He was fined and subsequently detained by police for 5 days for non-payment of the fine. The HRC found that his speech was on subjects of public interest (human rights, land rights and mining) and his conduct was neither threatening nor unduly disruptive. His arrest, conviction and imprisonment were ‘disproportionate’ and ‘undoubtedly’ a violation of his freedom of expression. Australia was asked to quash his conviction, refund his fines or court costs (nearly $3,000) and compensate him for his imprisonment. It has done none of these.
Read more on Coleman v Australia.
A make-up artist known as D, having participated in the production of pornography in Iran, suffered a beating and short imprisonment. Her husband, E, was also ‘repeatedly arrested and questioned regarding his wife’. They fled Iran with their children, and were detained on arrival in Australia. While Australia accepted that D faced the death penalty in Iran because of her activities, it did not accept that her claim fell under the Refugee Convention. The HRC requested a halt to the family’s deportation; Australia complied. The Committee found the family’s detention of more than 3 years was arbitrary and that Australia should provide an effective remedy, including compensation. The family was eventually granted humanitarian visas to remain in Australia, but has not been paid compensation.
Read more on D & E and their two children v Australia.
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.
Five authors, refugees from Iran, Sri Lanka and Afghanistan, were detained on arrival by boat in Australian territorial waters. They were assessed by Australian authorities as refugees, but also deemed a security threat. The basis of their security assessment was kept secret, meaning the authors were unable to challenge the merits of the assessment nor the justification of their detention.
The Committee accepted that their detention was arbitrary (art 9(1)), lacking periodic re-evaluation and judicial review (art 9(4)) and that the arbitrary and indefinite nature of their detention, as well as the conditions of their detention, inflicted “serious, irreversible psychological harm” (art 7). It recommended rehabilitation and compensation for the authors and non-repetition measures.
Read more on FJ et al v Australia.
Thirty-six Tamils, including 3 children, plus a Rohingya man from Burma, applied for asylum in Australia and were detained. They were later accepted by Australia as refugees, but were not released from detention because ASIO determined that they represented an undisclosed security risk. The HRC issued repeated requests concerning the authors’ mental health, which led to no discernible improvement in their conditions. The HRC found the authors had suffered inhuman and degrading treatment, arbitrary detention, denial of habeas corpus and, for 5 of the authors, a denial of the right to be informed of the reasons for one’s arrest. It recommended the authors be released, given rehabilitation and compensation. Further, Australia ‘should review its migration legislation’ to respect the prohibitions on inhuman and degrading treatment and arbitrary detention. As at May 2017, two of the 37 authors remained in immigration detention. (The children and their parents were released in 2013).
Read more on FKAG et al v Australia.
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.
A woman claimed the ‘Work for the Dole’ scheme, whereby welfare payments were made conditional on participation in labour programmes, constituted compulsory labour. The HRC did not agree on that point, but did find that, in failing to provide a general domestic mechanism by which to ‘test an arguable claim under … the Covenant’, Australia had violated Ms Faure’s right to remedy. The Committee held that ‘its Views on the merits of the claim constitute[d] sufficient remedy’ in this instance, but that Australia ought to ensure that, in future, ‘an effective and enforceable remedy’ is available to all within its jurisdiction for any violation of the ICCPR. Australia has not introduced such a remedy.
Read more on Faure v Australia.
Ms G is a transgender woman. She changed her name on her birth certificate and had her driver’s license, Medicare card and credit cards reissued in her new name and successfully applied for a passport in her new name and gender. She married a woman, and subsequently underwent gender affirmation surgery.
Because Australia does not permit same-sex marriage, it will not change the gender on the birth certificate of someone who is married. The same restriction does not apply to other identity documents, such as passports.
Ms G’s birth certificate states that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender and is a violation of her right to privacy (art 17).
Requiring Ms G to divorce in order to obtain a birth certificate that correctly identifies her gender is arbitrary interference with her right to family (art 17).
Further, “by denying transgender persons who are married a birth certificate that correctly identifies their sex, in contrast to unmarried transgender and non-transgender persons, the government is failing to afford the author and similarly situated individuals equal protection under the law”. The HRC found Ms G experienced discrimination on the basis of her marital status and her transgender identity (art 26).
Australia must make “full reparation” to Ms G, including providing her with a birth certificate consistent with her sex. Australia must also prevent similar violations in the future by revising its legislation to comply with the Covenant.
Read more on G v Australia.
Hew Griffiths, an Australian permanent resident, was indicted in the US for breach of copyright for making proprietary software and computer games freely available online, without financial gain.
Mr Griffiths was arrested and held on remand for periods totalling more than 3 years before he was extradited to face the charge of conspiracy to commit copyright infringement. He pleaded guilty and was sentenced to 51 months in prison, taking account of the time already served.
The Human Rights Committee found that Mr Griffiths’ disproportionately long and unjustified detention constituted arbitrary detention, and that he was denied the opportunity to challenge his detention.
Mr Griffiths is entitled to compensation, including his legal costs. Australia ought to review its Extradition Act to prevent future violations of articles 2 and 9.
Read more on Griffiths v Australia.
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.
In 1996, 21-year-old Corinna Horvath was assaulted by police during an unlawful raid on her home. Her nose was broken and she was hospitalised for 5 days. Despite her case reaching the High Court of Australia, Ms Horvath has still not received the compensation awarded to her by the County Court when it first heard the case in 2001. Further, none of the police involved has been disciplined or prosecuted for what the Court found to be trespass, assault, unlawful arrest and false imprisonment. Ms Horvath seeks compensation and effective discipline of the police officers involved. In 2014, the UN Human Rights Committee found that her right to an effective remedy has been violated and recommended legislative reform and compensation.
Read more on Horvath v Australia.
Ms Kwok fled China when her husband was arrested for corruption offences. He was later sentenced to death. She was wanted for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation without launching formal extradition proceedings, and Australia was willing to comply. Ms Kwok claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC requested a stay of deportation; Australia complied. The HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that Ms Kwok’s 6½ years in immigration detention was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’. Ms Kwok was not refouled, but neither has she been compensated.
Read more on Kwok v Australia.
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.
MGC is a US national who lived in Australia as an adult for 15 years. He committed a series of offences involving fraud, pleaded guilty and was convicted. Because his prison sentence exceeded 12 months, his visa was cancelled and he was detained for 3.5 years prior to deportation. MGC, having an Australian son, alleged his prolonged detention and permanent deportation interfered with his family. He also alleged his detention was arbitrary. The HRC agreed his detention was arbitrary, but not that the interference with his family was arbitrary.
Read more on MGC v Australia.
The 9 authors of this communication – 6 Tamils, including one child, who fled the conflict in Sri Lanka in 2009 or shortly thereafter, plus 2 Burmese and a Kuwaiti man – arrived in Australia and were detained. All were accepted by Australia as refugees. However, they were not released from detention because ASIO determined they were an undisclosed security risk. The HRC found the authors suffered inhuman and degrading treatment, arbitrary detention and denial of habeas corpus, recommending they all be released, rehabilitated and compensated. Further, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9 of the Covenant’. All 9 authors have reportedly been released; none is known to have been compensated nor provided with rehabilitation services.
Read more on MMM et al v Australia.
Mr Madafferi, an Italian in Australia, overstayed his tourist visa. He came to the attention of Australian authorities when he was sentenced by an Italian court in absentia. In the meantime, he had married an Australian and fathered Australian children, but his application for a spouse visa was refused on character grounds and he was detained, pending deportation. Mr Madafferi developed a ‘stress disorder’ in detention and was admitted to a psychiatric hospital for 6 months. The HRC requested a stay of deportation, which was initially refused. The Committee found that conditions in immigration detention were inhuman, and that there would be arbitrary interference with the family, in conjunction with treaty provisions protecting the family and children, if Mr Madafferi were deported. In 2005, his deportation order was overturned ‘on humanitarian grounds’. The HRC has deemed Australia’s response satisfactory.
Read more on Madafferi & Madafferi v Australia.
Stefan Nystrom was born in Sweden and entered Australia when only 27 days old. His family assumed he was a naturalised Australian. Mr Nystrom began hearing voices in childhood and has suffered psychiatric symptoms throughout his life. From the age of ten, he began offending, usually under the influence of alcohol. At the age of 30, seven years after his last offence, during which time he had been law-abiding, steadily employed and recovering from his alcoholism, Mr Nystrom’s permanent visa was cancelled on character grounds. An appeal to the Federal Court found him to be ‘an absorbed member of the Australian community with no relevant ties elsewhere’. The Immigration Minister appealed successfully to the High Court. Mr Nystrom was deported to Sweden in 2009 and has since been homeless, in homeless shelters, in prison and in psychiatric care. The HRC found Mr Nystrom’s deportation constituted arbitrary interference with his right to family and his ‘right to enter his own country’, which is Australia. Further, his expulsion was arbitrary – occurring so long after his offending. He should be permitted and materially assisted to return to Australia. Australia has refused to allow Mr Nystrom back into Australia, but says it has made policy reforms to guard against repetition.
Read more on Nystrom v Australia.
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.
A young Bangladeshi man fled his homeland fearing reprisals from a banned political party. Having been left at an orphanage as a child, Mr Shafiq has no identity papers; Bangladesh has no record of him and denies he is a citizen, rendering him stateless. Australia detained him on his arrival in 1999 and, disbelieving his refugee claim, tried unsuccessfully to deport him. Mr Shafiq, possibly Australia’s longest-serving detainee, became mentally ill in detention and acquired diabetes from a psychiatric medication he was given, rendering him insulin-dependent. The HRC found his detention was arbitrary and that he had been denied habeas corpus. It recommended he be released and compensated. After 7½ years in detention, Mr Shafiq was released, but he remains on a temporary visa under threat of deportation and has not been compensated.
Read more on Shafiq v Australia.
Eight unrelated young men from Iran, fearing persecution for a range of reasons, arrived in Australia and were detained. Each submitted a communication to the HRC, containing similar allegations concerning their treatment in detention and their fear of refoulement. Australia responded to all 8 cases together, and the HRC did the same, hence 8 independent communications became Shams et al. The Committee found that all had suffered arbitrary detention in excess of four years, had been denied habeas corpus and the right to remedy and that each should be compensated. Seven were ultimately found by Australia to be refugees, while the 8th was given a humanitarian visa. They have not been compensated.
Read more on Shams et al v Australia.
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.
Nick Toonen was a gay Tasmanian in a state where consenting sex between adult men in private was still punishable by up to 25 years’ gaol. Mr Toonen alleged that this violated his right to privacy and that the only effective remedy would be repeal of the relevant provisions of the Tasmanian Criminal Code. The Australian Government agreed with Mr Toonen, noting that homosexuality had been decriminalised in all other Australian jurisdictions. The Tasmanian Government defended its laws, however, on public health and moral grounds. The HRC found the laws were an arbitrary interference with Mr Toonen’s right to privacy and that an effective remedy would require the repeal of those laws. It also established that the prohibition on discrimination on the basis of ‘sex’ found in articles 2(1) and 26 includes sexual orientation. Australia enacted the Human Rights (Sexual Conduct) Act 1994 (Cth) to prohibit laws that arbitrarily interfere with the sexual conduct of adults in private. Tasmania subsequently amended its Criminal Code.
Read more on Toonen v Australia.
Indonesians Hendrick Winata and So Lan Li arrived in Australia in the 1980s and overstayed their visas, undetected. They had a son, who obtained Australian citizenship on his 10th birthday. The next day, his parents applied for refugee status. Their application was rejected and Immigration ordered their deportation. The HRC found that to deport Mr Winata and Ms Li would arbitrarily interfere with their family and breach Australia’s obligation to protect families and children. Australia rejected the Committee’s Views, but did not deport Mr Winata and Ms Li, who eventually obtained permanent residency in Australia.
Read more on Winata & Li v Australia.
Edward Young was in a same-sex relationship with war veteran Larry Cain for 38 years until the latter’s death. Mr Young was denied the pension paid to the dependants of war veterans who have died of war-related causes. The Veterans’ Entitlements Act 1986 (Cth) explicitly stated that eligible partners are of the opposite sex to the veteran, and this was the reason given for refusing Mr Young’s application. The Toonen case had established sexual orientation as a proscribed ground for differentiation under article 26, and the HRC found in Mr Young’s favour. It suggested Mr Young’s application for the pension be reconsidered without prejudice, and the law amended, if necessary. In 2008, Australia amended many instances of same-sex discrimination in federal legislation in a broad range of areas including veterans’ entitlements, and cited Young v Australia as an influencing factor. Mr Young has still not received the pension, however, as the Department of Veterans’ Affairs now contests his claim that Mr Cain died of war-related causes. The dispute is now one of medical opinion. The HRC has deemed Australia’s response unsatisfactory and follow-up dialogue ongoing.
Read more on Young v Australia.
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.