Cases violating ICCPR art 17 (potential) (3)

Note that committees can record actual or potential violations.

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

ICCPR art 17

G v Australia (HRC, 2017)

Remedy's assessment: Unremedied

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.

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.

Nystrom v Australia (HRC, 2011)

Remedy's assessment: Partially remedied

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.