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 young man from central Australia was arrested for offences committed while suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 7 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.
The Committee found that Australia did not provide Mr Doolan with the accommodation and supports he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Doolan was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Mr Doolan’s indefinite detention was arbitrary and his treatment, including solitary confinement, involuntary treatment, violence from other prisoners, denial of habilitation, rehabilitation, mental health and support services, was degrading, in violation of article 15.
Read more on Doolan 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.
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.
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.
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.
A young man was arrested for an assault committed while he was apparently suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 9 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.
The Committee found that Australia did not provide Mr Leo with the support he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Leo was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Making public mental health services conditional on people with disabilities living in an institution is discriminatory (art. 5). Australia justified Mr Leo’s arbitrary detention on the basis of his disability (art. 14(1)(b)) and his treatment was inhuman and degrading (art. 15).
Read more on Leo v Australia.
A poor Indonesian fisherman was recruited to work as a cook on a boatload of people seeking asylum in Australia. Intercepted at sea, the author was detained by Australia for almost 5 months before being charged with people smuggling. He spent a further 16 months on remand before being sentenced to 5 years’ gaol with a 3-year non-parole period, a mandatory sentence required by Australian law.
The UN Human Rights Committee found that his first 5 months of detention without charge or trial was unjustified and arbitrary, in violation of ICCPR article 9(1). His right to be brought promptly before a judge (art. 9(3)) and his right to challenge without delay the lawfulness of his detention in court (art. 9(4)) were also violated.
Read more on Nasir v Australia.
A court decided an intellectually impaired teen facing criminal charges was unfit to plead; he was imprisoned indefinitely without trial. A psychologist determined that with appropriate assistance the author was capable of standing trial, but the charges were dropped owing to insufficient evidence. After 10 years in prison, the man was released on restrictive conditions of unlimited duration and with no avenue of appeal to have them lifted.
The Committee on the Rights of Persons with Disabilities found Mr Noble was denied a fair trial, equal protection under the law, and the support he required to exercise his legal capacity. The Committee found his disability was the ‘core cause’ of his deprivation of liberty, which it deemed arbitrary and a form of inhuman and degrading treatment.
In response, Australia admitted failures, but denied violating Mr Noble’s rights and declined to comply with any of the Committee’s recommendations.
Read more on Noble 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.
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.
Mr Z 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 Z 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 Z 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 Z 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 Z 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 Z’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 Z v Australia.